UNAVOIDABLE AESTHETIC JUDGMENTS IN COPYRIGHT LAW:
A COMMUNITY OF PRACTICE STANDARD
Ben Depoorter* & Robert Kirk Walker†
Aesthetic judgments are “dangerous undertakings” for courts, but
they are unavoidable in copyright law. In theory, copyright does not distinguish between works on the basis of aesthetic values or merit (or lack
thereof), and courts often go to great lengths to try to avoid artistic
judgments. In practice, however, implicit aesthetic criteria are deeply
embedded throughout copyright case law. The questions “what is art?”
and “how should it be interpreted?” are inextricably linked to the questions “what does copyright protect?,” “who is an author?,” “what is
misappropriation?,” and many other issues in copyright law.
Although courts rarely (if ever) explicitly adhere to aesthetic principles in their decisions, the judicial logic used in copyright cases closely
mirrors three major aesthetic theories: formalism, intentionalism, and
Reader-Response. Formalism assesses the physical configuration of a
work irrespective of artistic intent. Intentionalism de-emphasizes physical similarities between works and instead looks for interpretative guidance in an artist’s behavior and professed objectives. Finally, ReaderResponse theory appraises artworks on the basis of their recognition by
the relevant art community.
Unfortunately for courts, these theories are largely incompatible.
Furthermore, none are sufficiently expansive to cover the variety of artistic practices contained within a single tradition, let alone the panoply
of expressive mediums protected by copyright law. As a result, doctrinal
inconsistencies abound (both inter- and intra-circuit), and the case law
largely fails to provide clear guidance as to the scope of protection—and
risk of liability—associated with different artistic practices.
This Article examines how courts have applied aesthetic theories to
resolve doctrinal issues concerning copyright-eligibility, derivative
*
Hastings Research Chair & Professor of Law, University of California,
Hastings College of the Law and Affiliate Scholar, Stanford Law School, Center
for Internet & Society. Email: depoorter@uchastings.edu
†
Affiliated Scholar, University of California, Hastings. This Article benefited greatly from suggestions received from Andrew Gilden, Christopher
Buccafusco, and participants at the Eleventh Annual Works-in-Progress Intellectual Property Colloquium at Santa Clara University School of Law.
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works, useful articles, and statutory fair use. Based on this analysis, this
Article argues that courts should adopt a uniform approach to aesthetic
judgments based upon the perspective of a hypothetical Community of
Practice capable of situating an expressive work in a specific artistic
context.
TABLE OF CONTENTS
I.
INTRODUCTION ............................................................................ 3
II. AESTHETIC THEORY & COPYRIGHT DOCTRINE .......... 10
A. BLEISTEIN AND THE “DOCTRINE OF AVOIDANCE” ..................... 11
B. BRIEF SURVEY OF AESTHETIC THEORIES USED IN COPYRIGHT . 15
1. Objective Meanings of a Work: Formalism ............................ 15
2. The Author’s State of Mind: Intentionalism ............................ 17
3. The Audience’s Mind: Reader-Response Theory .................... 19
III. SPECIFIC INSTANCES OF AESTHETIC JUDGMENTS IN
COPYRIGHT CASE LAW.............................................................. 2122
A. THE PROVINCE OF COPYRIGHT LAW: WORKS BY “AUTHORS” ..... 22
B. ARTISTIC, DERIVATIVE WORKS ................................................. 2627
C. USEFUL OR EXPRESSIVE WORKS ............................................... 2829
D. CREATIVE TRANSFORMATIONS AS FAIR USE ............................ 3335
IV. A “COMMUNITY OF PRACTICE” PROPOSAL .............. 3840
V. CONCLUSION.......................................................................... 4951
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I. INTRODUCTION
While courts have little difficulty navigating through dense
thickets of economics,1 psychology,2 science,3 and religious literature,4 they become utterly flummoxed when confronted with works
of art.5 This is a curious phenomenon, as many judges are broadly
conversant on art,6 and artistic interpretation is quite similar to the
textual exegesis that is a staple of judicial practice.7 Yet, time and
again, courts declare that they must abstain from making aesthetic
1
See, e.g., Richard A. Posner, ECONOMIC ANALYSIS OF LAW (7th ed. 2007).
See, e.g., Bernard L. Diamond, From M’Naghten to Currens, and Beyond,
50 CAL. L. REV. 189 (1962) (discussing the application of psychology to criminal law).
3
See, e.g., David S. Caudill & Lewis H. LaRue, Why Judges Applying the
Daubert Trilogy Need to Know About the Social, Institutional, and Rhetorical—
and Not Just Methodological—Aspects of Science, 45 B.C. L. REV. 1, 6 (2003)
(discussing the law’s use of scientific literature).
4
See, e.g., Bruce J. Casino, Note, “I Know It When I See It”: Mail-Order
Ministry Tax Fraud and the Problem of a Constitutionally Acceptable Definition
of Religion, 25 AM. CRIM. L. REV. 113, 130–34 (1987) (discussing the Supreme
Court’s attempts to define religion).
5
While many examples discussed in this Article are drawn from the cases
involving visual arts (e.g., painting, sculpture, photography, etc.), the analysis
presented is equally applicable to others types of creative work covered by copyright, except where otherwise noted. As such, the word “art” is used in its
broadest sense.
6
See, e.g., Leibowitz v. Paramount Pictures Corp., 137 F.3d 109, 111 n.11
(2d Cir. 1998) (a 296-word footnote providing a complete art-historical iconography of the “Venus Pudica” pose in a comparison of an Annie Leibowitz photograph of the actress Demi Moore and Botticelli’s Birth of Venus); see also
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249–51 (1903) (references to artists Velazquez, Whistler, Rembrandt, Degas, Goya, and Manet, and
the art critic John Ruskin).
7
Modern legal theory borrows heavily from aesthetic theory, particularly
literary criticism, particularly concerning textual determinacy, the analysis of
legislative intent, and the role of judges. See, e.g., Richard A. Posner, LAW AND
LITERATURE: A MISUNDERSTOOD RELATION (1988); Robin West, Jurisprudence
as Narrative: An Aesthetic Analysis of Modern Legal Theory, 60 N.Y.U. L. REV.
145 (1985); James Boyd White, What Can a Lawyer Learn from Literature,
102 HARV. L. REV. 2014 (1989).
2
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judgments8 on the basis that they are incompetent to do so,9 and
that any artistic definition or interpretation they might offer would
be subject to the whims of personal taste. Art, it seems, is like obscenity: it is something courts know when they see it, but they
can’t speak about it intelligibly.10
This rather hyperbolic judicial posture11 derives from the Supreme Court’s 1903 decision in Bleistein v. Donaldson Lithographing Co.12 This case has come to stand for the proposition that
copyright protection is not predicated on the artistic merits of a
work—i.e., copyright is not concerned with whether a work sits
high or low on the brow.13 This part of the Bleistein opinion is uncontroversial. However, Justice Holmes, writing for the Court,
went on to expound on the proper role of judges when faced with
aesthetic controversy:
It would be a dangerous undertaking for persons
trained only to the law to constitute themselves final
judges of the worth of pictorial illustrations, outside
of the narrowest and most obvious limits … 14
In the hundred-plus years since Bleistein was decided, courts
have refined Justice Holmes’s admonition against the “dangerous
undertaking” of artistic judgments into an interpretative principle
8
In this Article, the terms “artistic” and “aesthetic” are used synonymously.
Aesthetic theory denotes the branch of philosophy concerned with the interpretation and meaning of art. See generally AESTHETICS: A CRITICAL ANTHOLOGY
(George Dickie, Richard J. Sclafani & Ronald Roblin eds., 2d ed. 1989).
9
See Christine Haight Farley, Judging Art, 79 TUL. L. REV. 805, 815
(2005).
10
See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring)
(when faced with the task of “trying to define what is indefinable,” Justice
Stewart famously declared, “I shall not today attempt further to define the kinds
of materials I understand to be embraced within that shorthand description of
[hard-core pornography]; and perhaps I could never succeed in intelligibly doing
so. But I know it when I see it.”).
11
See Part III infra.
12
188 U.S. 239, 251–52 (1903) (holding that commercial illustrations are
“art” for the purpose of copyright protection).
13
That courts do not distinguish between “high” and “low” forms of artwork in determining the scope of copyright protection is often referred to as the
Bleistein non-discrimination principle.
14
Bleistein, 188 U.S. at 251–52 (emphasis added).
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termed the “doctrine of avoidance.”15 This doctrine holds that law
and art serve different and discordant cultural functions: law is
concerned with providing stability and predictability to society,
whereas art is unpredictable and by nature challenging to social
conventions.16 Moreover, courts are not specifically “trained” in
artistic assessment.17 For these reasons, among others,18 courts refuse to explicitly state aesthetic opinions on the basis that doing so
would discriminate in favor of one interpretation of art over another,19 which could result in chilling effects on speech20 and a covert
form of censorship.21
If only courts could follow their own prescription. Despite frequent insistence to the contrary, the very types of subjective and
qualitative assessments that Bleistein and its progeny seek to avoid
15
See Farley, supra note 9.
See generally ART AFTER MODERNISM: RETHINKING REPRESENTATION
(Brian Wallis ed., 1984) (critical essays discussing culturally provocative practices in post-modern art).
17
See, e.g., Martin v. City of Indianapolis, 192 F.3d 608, 610 (7th Cir.
1999) (“We are not art critics, do not pretend to be and do not need to be to decide this case.”); Yurkew v. Sinclar, 495 F. Supp. 1248, 1254 (D. Minn. 1980)
(“The question of what is art is inherently subjective, as it is nevertheless often
true that one man’s vulgarity is another’s lyric …. It necessarily follows that
courts are ill equipped to determine such illusory and imponderable questions...”)(citation omitted)
18
See Part II infra.
19
See, e.g., Brandir Int’l Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142,
1145 n.3 (2d Cir. 1982); see also Amy Adler, What’s Left?: Hate Speech, Pornography, and the Problem of Artistic Expression, 84 CAL. L. REV. 1499, 1548–
50 (1996) (arguing that art and law are inherently incompatible in an analysis of
attempts to exempt art from the category of obscene material).
20
See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582–83
(1994) (citing Bleistein and noting that whether “parody is in good taste or bad
does not and should not matter to fair use.”); Mattel Inc. v. Walking Mountain
Prods., 353 F.3d 792, 801 (9th Cir. 2003) (quoting Bleistein); Parks v. LaFace
Records, 329 F.3d 437, 462–63 (6th Cir. 2003) (same); SunTrust Bank v.
Houghton Mifflin Co., 268 F.3d 1257, 1278 (11th Cir. 2001) (applying
Bleistein); Ets-Hokin v. Skyy Spirits, Inc. 225 F.3d 1068, 1075 (9th Cir. 2000)
(citing Bleistein); Carol Barnhard, Inc. v. Econ. Cover Corp., 773 F.2d 411,
414–15 (2d Cir. 1985) (same).
21
See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251–52
(1903) (“[C]opyright would be denied to pictures which appealed to a public
less educated than the judge. Yet if they command the interest of any public—it
would be bold to say that they have not an aesthetic or educational value—and
the taste of any public is not to be treated with contempt.”).
16
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are inextricable from copyright law.22 For instance, aesthetic judgment is required to determine whether independent contributions
have “merged into inseparable . . . parts of a unitary whole” for
purposes of assigning joint ownership to a copyright and what (if
any) part of the design of a useful article is “capable of existing
independently of the utilitarian aspects of the article.”23 In addition, to determine the scope of copyright protection, courts must
apply the idea/expression dichotomy24 and the scenes a faire doctrine.25 These doctrines necessitate filtering out original, copyrightable expression from unprotectable ideas and stock elements,
which involves an appreciation of what artistic concepts are novel
and which are customary to a work’s genre. Similarly, whether two
works are found to be “substantially similar” depends, in large
part, on the level of aesthetic specificity the court chooses to apply
to the work.26Artistic intent is also often considered in determining
whether a use of copyright material is sufficiently “transformative”
to satisfy the “character and purpose” prong of the statutory fair
22
See Alfred C. Yen, Copyright Opinions and Aesthetic Theory, 71 S. CAL.
L. REV. 247, 301 (1998) (“The existence of copyright makes subjective pronouncements of aesthetic taste necessary.”); Raymond M. Polakovic, Should the
Bauhaus Be in the Copyright Doghouse? Rethinking Conceptual Separability,
64 U. COLO. L. REV. 871, 873 (1993) (asserting that the Copyright Act requires
courts to separate aesthetic and useful elements of a useful article); see also infra Part III.
23
17 U.S.C. § 101;see also infra Part III.
24
See, e.g., Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539,
556 (1985) (stating that the Copyright Act permits “free communication of facts
while still protecting an author’s expression”); Mazer v. Stein, 347 U.S. 201,
217 (1954) (“[P]rotection is only given to the expression of the idea—not the
idea itself.”); see also infra Part III.
25
See, e.g., Ets-Hokin v. Skyy Spirits, Inc., 224 F.3d 1068 (9th Cir. 2000);
Walker v. Time Life Films, 784 F.2d 44 (2d Cir. 1988). infra Part III.
26
Compare Nichols v. Universal Pictures Corp., 45 F.2d 119, 120 (2d Cir.
1930) (conducting a detailed comparison of the plot and characters of two
works) with Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp.,
562 F.2d 1157, 1161 (9th Cir. 1977) (finding infringement on the basis of general similarities between characters). For an excellent discussion of issues of
artistic interpretation in the context of copyright infringement and the test of
substantial similarity, see Yen, supra note 2223, at 288–97 (analyzing the interpretation of art by courts in the context of the ordinary observer test).
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use test.27 Moreover, in some instances judicial determination of
artistic merit and ontology is explicitly mandated by statute.28
In sum, when faced with questions that require qualitative
evaluation of works of art, judges are forced to perform analytical
jujitsu: blocking first with citation to Bleistein, then attacking with
an ad hoc aesthetic theory of the court’s own devising.29
In performing this maneuver, some courts have focused solely
on comparing the configuration of elements in a work that provoke
an aesthetic reaction.30 This approach, known as formalism,31 disregards other interpretative devices as irrelevant, including representation, expressiveness, and artists’ professed intent. Formalism
is perhaps best epitomized in copyright law by Judge Learned
Hand’s “comparative method” of assessing musical works.32 In
contrast, other courts have opted for a diametrically-opposed ap27
See 17 U.S.C. § 107(1). Compare Rogers v. Koons, 960 F.2d 301 (2d Cir.
1992) (finding that the unauthorized use of a photography in the creation of a
sculpture was not parodic fair use) with Blanch v. Koons, 467 F.3d 244 (2d Cir.
2006) (finding defendant’s work sufficiently transformative to justify fair use
defense). See generally Pierre N. Leval, Towards a Fair Use Standard,
103 HARV. L. REV. 1105 (1990). See also infra Part III.
28
See, e.g., Visual Artists Rights Act, 17 U.S.C. § 106A (providing “moral
rights” in excess of the Copyright Act to works of art of “recognized stature”);
Brancusi v. United States, 54 Treas. Dec. 428, 428–29 (Cust. Ct. 1928) (determining whether Constantin Brancusi’s abstract sculpture Bird in Flight was a
work of art or a mere “manufacture of metal” for purpose of determining whether a customs duty was owed); Rev. Rul. 68-232, 1968-1 C.B. 79 (prohibiting
depreciation deductions from federal income tax because art is not expected to
depreciate in value or become obsolete over time).
29
See, e.g., Polakovic, supra note 2223, at 873 (asserting that the Copyright
Act requires courts to separate aesthetic and useful elements of a useful article).
30
See Yen, supra note 2223, at 253 (“[T]he key to defining art is the identification of the peculiar qualities that enable certain objects, but not others, to
provoke this ‘aesthetic emotion.’”). For a review of some case law examples,
see infra Part III.
31
See, e.g., CLIVE BELL, ART 17 (1958) (defining a formalist approach to
art criticism); Clement Greenberg, Modernist Painting, in ART IN THEORY:
1900-1990: AN ANTHOLOGY OF CHANGING IDEAS 754–60 (Charles Harrison &
Paul Woods, eds., 1993).
32
Hand’s method involved a note-by-note comparison of the melodies of
the musical works at issue, pinpointing where identical pitches occurred at the
same point in the two songs. For examples of variations this comparative method, see: Haas v. Leo Feist, 235 F. 105 (S.D.N.Y. 1916); Hein v. Harris, 175 F.
875 (S.D.N.Y. 1910); Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946).
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proach to aesthetic questions, foregoing formal comparisons and
instead focusing on the author’s intention at the time she created
the work.33 This aesthetic theory is commonly known as
Intentionalism.34 Still other courts have looked for aesthetic guidance based on how a work is understood by “ideal readers” or an
“intended audience.”35 This approach is known as ReaderResponse theory.36 And, as often as not, courts end up doing theoretical mix-and-match,37 “swapping one set of aesthetic premises
for others in response to the facts of a particular case.”38
Unfortunately, these three major aesthetic theories39 are largely
incompatible,40 and none are sufficiently expansive to cover the
33
See, e.g., Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989,
990 (2d Cir. 1980) (basing its finding of conceptual separability on evidence of
plaintiff’s mental processes and the reactions of others).
34
See, e.g., Monroe C. Beardsley, An Aesthetic Definition of Art, in WHAT
IS ART? 15, 21 (1983) (“[A]n artwork is something produced with the intention
of giving it the capacity to satisfy the aesthetic interest.”); see also Yen, supra
note 2223, at 263; infra Part III.
35
See William E. Tolhurst, On What a Text Is and How it Means, 19 BRIT.
J. AESTHETICS 3–14 (1979); infra Part III.
36
Reader-Response theory was developed as a mode of literary criticism.
See, e.g., LOIS TYSON, CRITICAL THEORY TODAY: A USER-FRIENDLY GUIDE 154
(1999) (“[R]eader-response theorists share two beliefs: (1) that the role of the
reader cannot be omitted from our understanding of literature and (2) that readers do not passively consume the meaning presented to them by an objective
literary text; rather they actively make the meaning they find in literature.”);
GEORGE DICKIE, ART AND THE AESTHETIC: AN INSTITUTIONAL ANALYSIS 35–37
(1974) (arguing that an object becomes art when it is presented to members of
the art world for aesthetic consideration); see also Farley, supra note 9, at 844.
For example, a Reader-Response critique of a putative artwork would assess
whether or not members of the “art world” perceive and value the work as art.
See Arthur Danto, The Artworld, 61 J. PHIL. 571 (1964) (discussing “readymades” and the work of Andy Warhol).
37
Compare Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989,
990 (2d Cir. 1980) (holding based on Intentionalism and Institutionalism) with
Carol Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411, 419 (2d Cir. 1985)
(analysis based on Formalism).
38
Yen, supra note 2223, at 298.
39
The philosophical tradition of aesthetics dates back at least to Greek antiquity. See, e.g., David Sider, Plato’s Early Aesthetics: The Hippas Major, 35 J.
AESTHETICS & ART CRITICISM 465 (1977); ARISTOTLE, POETICS (Joe Sachs
trans., 2006). A full survey of the subject is well beyond the scope of this Article. For a general survey, see MARCIA MUELDER EATON, BASIC ISSUES IN AESTHETICS (1988).
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variety of artistic practices contained within a single tradition, let
alone the panoply of mediums protected by copyright law. As a
result, doctrinal inconsistencies abound (both inter- and intracircuit),41 and the case law largely fails to provide clear guidance
as to the scope of protection—and risk of liability—associated
with different artistic practices.
Therefore, to alleviate this confusion, courts need to jettison
the doctrine of avoidance42 and explicitly acknowledge the necessity of aesthetic interpretation in copyright adjudication.43 This Article argues that courts should instead adopt a framework for making
aesthetic determinations based upon a “Community of Practice”
standard, based in reader-response interpretation and roughly analogous to the “person having ordinary skill in the art” standard utilized in patent law.44 The proposed standard would help resolve the
confusion that so often arises when art is hauled into a courtroom.
First, our proposal will help allay courts’ fears concerning aesthetic
determinations by providing a methodology for systematically sifting through art’s historical and theoretical literature and obtaining
input from experts. Second, our Community of Practice standard
will enable litigants to settle aesthetic questions ex ante, which
would facilitate bargaining and extra-judicial dispute resolution.
Third, our proposal will promote artistic innovation by establishing
40
As Part III, infra, illustrates, courts combine the three aesthetic theories in
their assessment of legal issue. In addition to leading to inconsistent outcomes in
the case law, it should be noted that these different approaches are incompatible
from the standpoint of aesthetic theory: Formalism explicitly rejects the author's
intent as irrelevant to a work (i.e., the "intentional fallacy"), and Intentionalism
concerns itself with formal properties or the work to see if the artist achieved
their intended goal (i.e., "she said she was doing X, but the song actually conveys Y"). Reader-Response theory is more flexible insofar as it can go either
way, so in that sense it's not entirely incompatible with either Formalism or
Intentionalism, except that it supplants the authority of both theories as the theory of art (i.e., the audience can respond however it wants and there isn't one single "correct" reading of the work).
41
See Yen, supra note 2223 at 274–84 (discussing the oscillation aesthetic
theories used by the Second Circuit in determining cases involving useful articles).
42
See Farley, supra note 9, at 815.
43
This Article is concerned primarily with the role of aesthetic interpretation in copyright law. For a discussion of the legal significance of designating a
work as “art” in other fields of law, see id. at 819–37.]
44
See infra Part III; see also 35 U.S.C. § 103(A).
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clearer guidelines for artists and reduce incidents of copyright infringement.45
Part II of this Article details the various aesthetic theories that
courts have used to make judgments, and analyzes the relative
merits of each aesthetic approach. Part III discusses specific instances in which aesthetic judgments are required by copyright
doctrine. Part IV describes the proposed Community of Practice
standard in detail, and posits its superiority to any single aesthetic
theory described in Part II. Part V concludes.
II. AESTHETIC THEORY & COPYRIGHT DOCTRINE
Aesthetic theory is the branch of philosophy concerned with
the interpretation and meaning of art.46 At its core, aesthetics posits
two basic questions: what is art, and how should it be interpreted?
The former question, though important to a wide range of statutory
and common-law provisions,47 has little bearing on copyright law
generally.48 However, the question of how art should be interpreted
is of great importance to copyright jurisprudence, as discussed in
Part III.49 In this Part, we will assess three major theories of artistic
interpretation—Formalism,
Intentionalism,
and
Reader-
45
See infra Part IV.
See generally AESTHETICS: A CRITICAL ANTHOLOGY (George Dickie,
Richard J. Sclafani & Ronald Roblin eds., 2d ed. 1989); ARGUING ABOUT ART
(Alex Neill & Aaron Ridley eds., 2d ed. 2002). The term “aesthetics” is also
used to denote theories of the beautiful, which are beyond the scope of the use of
the term here. See, e.g., ARTHUR C. DANTO, THE ABUSE OF BEAUTY: AESTHETICS AND THE CONCEPT OF ART 1 (2003).
47
See, e.g., NEA v. Finley, 524 U.S. 569 (1998) (upholding a statutory requirement that funding from the National Endowment for the Arts must take into
“consideration general standards of decency and respect for the diverse beliefs
and values of the American public” when determining artistic merit and excellence for the purposes of grant-making); see also supra note 2829.
48
With the notable exception of the Visual Artists Rights Act, which provides additional moral rights to works of art of “recognized stature.” See
17 U.S.C. § 106A.
49
See infra Part III.
46
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Response50—that have been used extensively (albeit covertly) by
courts.51
A.
Bleistein and the “Doctrine of Avoidance”
In Bleistein v. Donaldson Lithographing Co., the Court determined whether chromolithographs—an early form of color photographic reproductions52—created specifically for use as commercial advertisements were protected as “pictorial illustrations” under
copyright law.53 The respondents contended that works only qualified as “pictorial illustrations” if they were “connected to the fine
arts.”54 The Court squarely rejects this argument, holding that the
chromolithographs in question were pictorial illustrations protected
by copyright.55 “A picture is nonetheless a picture, and nonetheless
a subject of copyright, that is used for an advertisement.”56 Justice
Holmes, writing for the Court, then went on to say, in one of the
most famous passages in copyright law:
It would be a dangerous undertaking for persons
trained only to the law to constitute themselves final
judges of the worth of pictorial illustrations, outside
of the narrowest and most obvious limits. At the one
extreme, some works of genius would be sure to
miss appreciation. Their very novelty would make
them repulsive until the public had learned the new
50
Also known in the visual arts context as Institutionalism (with some variations). See DICKIE, supra note 3638, at 35–37 (1974) (arguing that an object
become art when it is presented to members of the art world for aesthetic consideration).
51
See Yen, supra note 2223, at 252–66 (discussing major theories in aesthetics that have been utilized by courts).
52
See Planographic Printing, NEW YORK PUBLIC LIBRARY,
http://seeing.nypl.org/planographic.html (last visited Nov. 26, 2013).
53
188 U.S. 239, 248 (1903) (holding that commercial illustrations were
“art” for the purpose of copyright protection); see also Diane Leenheer Zimmerman, The Story of Bleistein v. Donaldson Lithographing Company: Originality as a Vehicle for Copyright Inclusivity, in INTELLECTUAL PROPERTY STORIES 77–108 (Jane C. Ginsburg & Rochelle Cooper Dreyfuss eds., 2005)
54
Bleistein, 188 U.S. at 250 (citing 18 Stat. 78, 79 c. 301, § 3).
55
Id.
56
Id. at 251.
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language in which their author spoke . . . . At the
other end, copyright would be denied to pictures
which appealed to a public less educated than the
judge. Yet if they command the interest of any public, they have a commercial value—it would be bold
to say that they have not an aesthetic and educational value—and the taste of any public is not to be
treated with contempt.57
On first impression, this passage seems commonsensical: it is not
the business of courts to instruct people what art to appreciate.
True enough, perhaps, but then courts are rarely (if ever) asked to
settle disputes over aesthetic preferences––i.e., to be “final judges
of the worth” of a putative artwork.58 Rather, the question that
courts face is more fundamental: is the work in dispute art, or
something else?59 And if it is art, how should it be interpreted and
compared to other artworks?60 On these issues, Bleistein’s prescription is less cogent.
First, the “dangerous undertaking” that Holmes warned of occurs because “persons trained only to the law” seek to make final
judgments on the worth of artwork.61 By negative implication, this
would suggest that judges trained in art history or aesthetic might
be qualified to make such judgments.62 And even if a judge is
completely ignorant of art, it might still be permissible for her to
make aesthetic judgments if they are within the “narrowest and
most obvious limits.”63 What these limits are, Justice Holmes did
not say, nor has any subsequent court.
57
Id. at 251–52.
Id.
59
See supra note 2829.
60
See id.; see also supra note 49 and accompanying text.
61
Bleistein, 188 U.S. at 251–52.
62
As Justice Holmes himself was, evident from references in the Bleistein
decision to Velazquez, Whistler, Rembrandt, Muller, Degas, Manet, and Goya,
as well as the art historian John Ruskin. See id. at 249–52; see also Oliver Wendell Holmes, Notes on Albrecht Dürer, in 1 THE COLLECTED WORKS OF JUSTICE
HOLMES 153 (Sheldon M. Novick ed., 1995) (essay about artist Albrecht Dürer
written by Justice Holmes). Other judges have proven themselves similarly
competent to discuss art and art history. See note 6 supra.
63
Bleistein, 188 U.S. at 251–52,
58
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Second, Holmes argued that judges should avoid aesthetic pronouncements because the potential for “commercial,” “aesthetic,”
and “educational” values implicit in a work might escape the
court’s attention.64 “[I]f they command the interest of any public,
they have a commercial value—it would be bold to say that they
have not an aesthetic and educational value—and the taste of any
public is not to be treated with contempt.”65 Justice Holmes’s concern for the aesthetic preferences of persons “less educated than
the judge” is admirable.66 However, the link between aesthetic, educational, and commercial value is tenuous. Even if the Bleistein
Court had accepted the respondent’s argument that only works
“connected to the fine arts” qualified for copyright protection,67 it
would necessarily follow that these works have commercial, educational, or aesthetic value. But any visit to the dumpster behind an
art school would provide ample evidence of putatively worthless
“fine art.”
Finally, and most problematically, the type of aesthetic judgment that Justice Holmes cautioned against was simply not at issue
in Bleistein. The Court had not been asked to define “fine arts” or
even to construe the meaning of “connected to the fine arts.”68 Rather, the Court was tasked with determining whether advertisements are “pictorial illustrations” within the meaning of the copyright statute.69 On this question, Holmes maintained that aesthetic
merits do not matter:
[T]he act, however construed, does not mean that
ordinary posters are not good enough to be considered within its scope. The antithesis to “illustrations
or works connected with the fine arts” is not works
of little merit or of humble degree, or illustrations
addressed to the less educated classes; it is “prints
or labels designed to be used for any other articles
of manufacture.”70
64
Bleistein, 188 U.S. at 252.
Id.
66
Id.
67
Id. at 250 (citing 18 Stat. 78, 79 c. 301, § 3).
68
Id.
69
Id.
70
Id. at 251.
65
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As such, Bleistein’s warnings against aesthetic judgments should
properly be read as dicta; Bleistein does not explicitly hold that
courts must abstain from aesthetic judgments in all instances.71
However, subsequent courts have cited Bleistein as requiring such
abstention.72
As scholars have noted, courts have provided numerous reasons for avoiding aesthetic determinations.73 Courts have argued
that aesthetics are inherently subjective and dependent on taste,
which is outside the realm of what courts can properly decide.74
Similarly, the principle of judicial neutrality has been evoked to
forbid aesthetic decision-making,75 which would elevate particular
aesthetic preferences and theories over other equally valid theories.76 Other courts have pled incompetence in artistic assessment77
or have expressed concern that revealing their views on art would
result in being labeled a philistine, or worse.78
Courts have pursued various strategies to implement the doctrine of avoidance, such as substituting other issues in place of the
aesthetic question, focusing on the weight of evidence rather than
71
For example, Bleistein itself contemplates that judges will make aesthetic
determinations within the “narrowest and most obvious limits.” Id. at 250. See
Farley, supra note 9, at 818.
72
See Farley, supra note 9, at 815, n.36. For a partial list of cases citing
Bleistein, see note 2021 supra.
73
See id. at 813–19 (coining the phrase “doctrine of avoidance” and enumerating some of the reasons why courts avoid aesthetic determinations).
74
See, e.g., Smith v. Goguen, 415 U.S. 566, 573 (1974) (“What is contemptuous to one . . . may be a work of art to another.”) (citation omitted); see also
Farley, supra note 9, at 813, n.15 (providing a list of case citations discussing
subjectivity and art).
75
See Farley, supra note 9, at 811, n.14 (listing courts and commentators
who have argued that law and aesthetics should not be intermingled).
76
See id. at 813 (citing Brandir Int’l Inc. v. Cascade Pac. Lumber Co., 834
F.2d 1142, 1145 n.3 (2d Cir. 1982)).
77
See, e.g., Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923, 929
(7th Cir. 2003); Martin v. City of Indianapolis, 192 F.3d 608, 610 (7th Cir.
1999); Yurkew v. Sinclar, 495 F. Supp. 1248, 1254 (D. Minn. 1980); see also
Farley, supra note 9, at 814.
78
See Farley, supra note 9, at 815 (“Even culturally elite judges fear the exposure that can be caused by laying bare their views on art.”) (citing Gracen v.
Bradford Exch., 698 F.2d 300, 304 (7th Cir. 1983) (Posner, J.). Cf. Hilton Kramer, THE REVENGE OF THE PHILISTINES: ART AND CULTURE, 1972–1984, at 383
(1985) (dismissing Pop Art).
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its meaning, or simply concluding without supporting analysis.
However, none of these avoidance techniques really eliminate aesthetic questions from the judicial inquiry: they merely shift such
questions to the side, out of focus. This results in an incomplete
snapshot of the law, as there are numerous areas of copyright law
that explicitly require artistic judgment.79 In such instances, a different mode of reasoning cannot substitute for actual artistic interpretation.80 As a result, the doctrine of avoidance—intended to
promote objectivity and eliminate questions of taste—ironically
creates a dynamic where courts must rely solely on their own subjective intuitions.
B.
Brief Survey of Aesthetic Theories Used in Copyright
Sometimes covertly, often unconsciously, courts have drawn
on artistic theory and practice for resolution of aesthetic questions.
This Section offers a brief summary of some of the major theories
of aesthetic interpretation.81
1.
Objective Meanings of a Work: Formalism
Formalist theory defines art based on the “peculiar qualities
that enable certain objects, but not others to provoke [an] aesthetic
emotion.”82 Following this theory, a good artwork arouses an emotional experience in a sensitive observer through the interrelationship of its formal qualities—line, shape, color, etc.83 For a Formal79
See infra Part III.
See Yen, supra note 2223, at 301 (“[T]he existence of copyright makes
subjective judicial pronouncements of aesthetic taste necessary.”); Polakovic,
supra note 2223, at 873; Farley, supra note 9, at 811 n.14; see also infra Part III
(discussing specific areas where aesthetic judgment is required in copyright
law).
81
As Professor Alfred C. Yen has observed, the “analytical premises of
copyright opinions indirectly reflect insights from theses of major aesthetic theories.” Yen, supra note 2223, at 250.
82
Bell, supra note 3132, at 15; see also HAROLD ROSENBERG, THE DEDEFINITION OF ART: ACTION ART TO POP TO EARTHWORKS 11 (1972); Yen, supra
note 2223, at 253
83
See JOHN ANDREW FISHER, REFLECTING ON ART 29 (1993); see also Farley, supra note 9, at 842.
80
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ist, aesthetic sensation is derived solely from a work’s configuration.84 Neither the artist’s state of mind during the work’s creation,
nor the subject matter contained in the work, is relevant to its status as art.85 Knowledge of the artist’s ideas or biography may even
be detrimental to a proper understanding of an artwork, as these
details could distract a viewer from fully appreciating the work’s
form.86
If the meaning of a work is intrinsic to the work itself, then a
viewer can discern this meaning through empirical inquiry without
recourse to personal views.87 Thus, a single, objective, “correct”
interpretation of the work is theoretically possible.88 Moreover,
since the focus in Formalist interpretation is solely based on the
qualities of a work that are aesthetically moving (e.g., shapes that
are pleasing, sounds that are harmonious), and no additional
knowledge of the artist’s life or work is required,89 some theorists
have maintained that a lay observer is capable of making aesthetic
judgments that equal those of an expert. In this way, Formalism
seems to provide an elegant solution to the problem of subjectivity
and taste: art is not just in the eye of the beholder. For this reason,
among others,90 Formalism is a favorite go-to position for courts.91
84
See, e.g., Bell, supra note 3132, at 27–28 (“[T]o appreciate a work of art
we need bring with us nothing from life, no knowledge of its ideas and affairs,
no familiarity with its emotions. Art transports us from the world of man’s activity to a world of aesthetic exultation.”); FRYE, supra note Error! Bookmark not
defined.33, at 134; see also Yen, supra note 2223, at 261–62.
85
See, e.g., Bell, supra note 3132,at 19 (“In pure aesthetic, we have only to
consider our emotion and its object: for the purposes of aesthetics we have no
right, neither is there any necessity, to pry behind the object into the state of
mind of him who made it.”);see also supra note Error! Bookmark not defined.33 and accompanying text..
86
See Wimsatt & Beardsley, supra note Error! Bookmark not defined.33,
at 18 (“Critical inquiries are not settled by consulting the oracle.”).
87
See, e.g., Bell, supra note 3132, at 27–28 (“For a moment we are shut off
from human interests; our anticipations and memories are arrested; we are lifted
above the stream of life . . . . In this world the emotions of life find no place. It is
a world with emotions of its own.”).
88
See Wimsatt & Beardsley, supra note 8586, at 4–5 (“A poem can be only
through its meanings—since its medium is words—yet it is, simple is, in the
sense that we have no excuse of inquiring what part is intended or meant.”).
89
See Bell, supra note 3132, at 19.
90
For example, Formalism is considered more commonsensical and instinctual than other aesthetic theories. See, e.g., Yen supra note 2223, at 262 (“For-
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However, Formalism has serious interpretative weaknesses and
blind spots. For example, consider the following sentence: “Half
the people you know are below average.” Should this be interpreted as a statement of fact, or a humorous quip? Does it help to know
that the phrase is popularly attributed to comedian Steven
Wright?92 The true meaning of the statement cannot be derived
through Formalist method because the source of the statement is
not contained in the text. A reader/listener would have to know the
sentence was written by a comedian in order to grasp its full meaning.93 Similarly, Formalism utterly fails to account for many
movements in modern and contemporary art that emphasize the
conceptual and referential content of a work over its formal qualities.94
2. The Author’s State of Mind: Intentionalism
Whereas Formalism regards authorial intent as irrelevant to a
work’s meaning,95 Intentionalism holds that artists’ creative motivations are paramount to understanding their art.96 According to
this theory, “an artwork is something produced with the intention
malist theories bear a rough resemblance to the interpretive approach that many
laypersons might take.”).
91
See, e.g., Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946) (applying a formalist approach to compare two songs). See also infra Part III.
92
See, e.g., The Mind of Steven Wright, ETNI – ENGLISH TEACHERS NETWORK, http://www.etni.org.il/farside/mindgames.htm.
93
See, e.g., William E. Tolhurst, supra note 3537, at 3–14 (discussing a
similar example: “Nixon is the best president since Lincoln.”); see also Yen
supra note 2223, at 262.
94
For example, Dada, Minimalism, Process art, Performance art, Conceptual art, and Appropriation art all de-emphasize the making of aesthetically pleasing objects in favor of presenting “art as an idea.” See generally JONATHAN
FINEBERG, ART SINCE 1940: STRATEGIES OF BEING 14–17 (1995); IRVING
SANDLER, ART OF THE POSTMODERN ERA: FROM THE LATE 1960S TO THE EARLY
1990S 332–74 (1996); Lucy LIPPARD, SIX YEARS: THE DEMATERIALIZATION OF
THE ART OBJECT (1973).
95
See, e.g., supra notes 3132–Error! Bookmark not defined.33 and accompanying text.
96
See, e.g., Monroe C. Beardsley, An Aesthetic Definition of Art, in WHAT
IS ART? 15, 21 (1983) (“[A]n artwork is something produced with the intention
of giving it the capacity to satisfy the aesthetic interest.”); see also Farley, supra
note 9, at 843.
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of giving it the capacity to satisfy the aesthetic interest.”97 Under
this definition, for a work to be considered art it must have arisen
from an artist’s volition: accidental acts of beauty are not art.98 As
such, an objective interpretation of a work of art can only be derived from inquiry into the state of mind of the artist at the moment
of creation.99 For example, an Intentionalist reading of “half the
people you know are below average,” could identify that the sentence was meant as a joke, based upon the fact that the writer was a
comedian and the context in which the statement was uttered.100
However, as one leading Intentionalist readily concedes: “intentions, being private, are difficult to know.”101 Evidence of an
artist’s intentions is frequently missing or uncertain (as is often the
case when the artist is deceased), or an artist may simply be inarticulate.102 More worrisome still, even unambiguous statements of
intent may be self-serving and erroneous.103 For example, an author may claim to have had a conscious intention that was not actually present at the time of creation.104 Such uncertainty presents
97
Beardsley, supra note 9697, at 48.
Id. at 28.
99
See generally E.D. HIRSH, JR. THE AIMS OF INTERPRETATION (1976) (defending Intentionalism).
100
The process of identifying an artist’s intent through extrinsic evidence is
roughly analogous to the determination of a perpetrator’s mens rea at the time of
their crime.
101
Beardsley, supra note 9697, at 23.
102
For example, Abstract Expressionist painter Jackson Pollock was famous
for his inability to talk about his own work. See, e.g., SELDON RODMAN, CONVERSATIONS WITH ARTISTS (1961) (“[Pollock] talks with difficulty, searching
painfully, almost agonizingly, for the right word, with constant apologies ‘for
not being verbal.’”).
103
See, e.g., JOSEPH WOOD KRUTCH, EDGAR ALLEN POE: A STUDY IN GENIUS 98 (1926) (disputing the methods Poe claimed to have used in writing The
Raven, calling them “a rather highly ingenious exercise in the art of rationalization than literary criticism.”); see also Yen, supra note 2223, at 264.
104
Take, for example, Krzysztof Penderecki’s musical composition Threnody for the Victims of Hiroshima. This piece was originally titled 8’37” (likely an
homage to John Cage’s 4’33”), but it was retitled to reference the destruction of
Hiroshima after listeners noted similarities to the sound of bombs dropping and
people screaming. See, e.g., Threnody to the Victims of Hiroshima – Krzysztof
Penderecki, Culture.Pl (July 3, 2011), http://culture.pl/en/work/threnody-to-thevictims-of-hiroshima-krzysztof-penderecki. Therefore, whatever associations
listeners might draw between the piece and the bombing of Hiroshima cannot be
credited to the composer’s intentions.
98
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particular risks in litigation, where artists have a strong motivation
to represent their intentions in the light most favorable to their legal position.105
3. The Audience’s Mind: Reader-Response Theory
In response to the interpretative weaknesses of both Formalism
and Intentionalism, some aesthetic theorists have posited that the
meaning of a work of art is only what exists in the minds of its audience, a theory known as Reader-Response or Institutionalism.106
The most extreme version of this theory holds that works of art
never have a fixed or universally accepted meaning.107 Since no
two readers share the same set of aesthetic assumptions, there can
be no consensus as to the “correct” meaning of a work, and interpretation is a mere function of the reader’s preferences.108 Thus, all
aesthetic disagreements are unresolvable matters of personal
taste.109
Other Reader-Response theorists, however, contend that such
relativism can be avoided if one presupposes that some readers are
more accurate than others. For instance, an Elizabethan scholar’s
interpretation of the text of Julius Caesar is likely to be more accurate than a seventh-grader’s. From this, one can imagine a hypothetical “ideal reader” or “intended audience” capable of supplying
the most plausible (if never precisely correct) interpretation of a
work.110
105
Infra__
See, e.g., Peter Jaszi, Who Cares Who Wrote “Shakespeare?”, 37 AM. U.
L. REV. 617, 619–20 (1988) (“[T]he object of critical attention is the structure of
the reader’s experience, not any ‘objective’ structure to be found in the work
itself.”). See generally Jane P. Tompkins, An Introduction to Reader-Response
Criticism, in READER-RESPONSE CRITICISM: FROM FORMALISM TO POSTSTRUCTURALISM (1980).
107
See Tompkins, supra note 106, at xix–xx (discussing the theories of
Norman Holland and David Bleich).
108
Id.
109
This aesthetic position goes back at least as far as the Romans, who had
an expression: de gustibus non disputandum est (“there is no disputing of
tastes”).
110
See Yen supra note 2223, at 265 (“This trick to a correct interpretation . . . becomes the selection of a particular reader whose perspective is elevat106
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Unfortunately, in practice, Reader-Response theory can often
morph into an ersatz form of either Formalism111 or
Intentionalism.112 For example, if the best interpretation of a work
is derived from its reception by the author’s “intended audience,”
then this hypothetical audience is likely to hold values and beliefs
that are very close (if not identical) to the persons that the author
intended to communicate with in the first place.113 Thus, the artist’s intentions largely control the composition of the “intended
audience,” causing analysis of the audience’s response to yield a
result similar to Intentionalism.114 Furthermore, Reader-Response
theory holds within it the potential danger of discrimination against
minority viewpoints or unrecognized artistic practices, depending
on how one defines a work’s “ideal reader.” For example, if preference is given to the aesthetic understanding of members of the
putative “art world,” then the viewpoints of people who are not
members of that world are necessarily excluded. This excluded
group would contain many artists and art practices that have not
garnered significant commercial or scholarly recognition, such as
“outsider artists.”115
ed above others.”); JONATHAN CULLER, STRUCTURALIST POETICS: STRUCTURALISM, LINGUISTICS, AND THE STUDY OF LITERATURE 123–24 (1975); Tolhurst, supra note 9394, at 12. Given the rough equivalence between the hypothetical
reader offered by Reader-Response theory and well-established legal fiction of
the “reasonable person,” it would seem that this theory offers the best interpretative fit for courts. See, e.g., United States v. Carroll Towing Co., 159 F.2d 169
(2d Cir. 1947) (providing a test for determining the decision-making process of
a hypothetical reasonable person); see also infra Part IV.
111
See Culler, supra note 110, at 123–24. However, the risk of ReaderResponse theory devolving into Formalism is not as great as the risk that it
might turn into Intentionalism. See Yen, supra note 22 at 265
112
See, e.g., Tolhurst, supra note 3537, at 12 (The correct meaning of a text
is the “intention which a member of the intended audience would be most justified in attributing to the author based on the knowledge and attitudes which he
possess by virtue of being a member of the intended audience.”).
113
See Yen, supra note 22, at 266.
114
See id.
115
See generally Colin Rhodes, OUTSIDER ART: SPONTANEOUS ALTERNATIVES (2000); Maurice Tuchman & Carol Eliel, eds., PARALLEL VISIONS: MODERN ART AND OUTSIDER ART (1992); (discussing works created by artists on the
margins of the art world and society, such as psychiatric patients, criminals, recluses, etc.)
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***
This brief introduction provides a general framework for thinking about the fault-lines in artistic interpretation (e.g., the incompatibility of Formalism and Intentionalism) and the challenges presented to courts in thinking through aesthetic issues in a systematically consistent way.116 Though it may be true that “no one can say
with assurance what a work of art is,”117this bare fact should not
dissuade courts from engaging with aesthetic thought, just as it has
not in similarly indeterminate areas of economics, psychology,
science, and religion.118 Moreover, as we will see in the next Part,
copyright law demands that courts make aesthetic determinations,
and rendering such judgments without acknowledgment of aesthetic theory has led to doctrinal confusion. Since courts cannot avoid
making artistic judgments,119 they need to be cognizant of the theoretical underpinnings of these judgments, elusive though they may
be.
III. SPECIFIC INSTANCES OF AESTHETIC JUDGMENTS IN COPYRIGHT
CASE LAW
In this Part, we provide an overview of instances in which copyright doctrine implicates artistic evaluations. We also identify instances where courts use arguments that closely mirror leading aesthetic theories. Formalism, Intentionalism, and Reader Response
theories are all utilized (albeit implicitly)120 in judicial decisions on
a wide range of issues in copyright law, including issues of copyright eligibility, originality, authorship, copyright infringement,
and fair use.
116
Our discussion of aesthetic theory is not comprehensive, either in the
breadth of the models presented or their conceptual depth. For a more in-depth
treatment of these philosophies, see generally DANTO, supra note 4647;
THEODOR W. ADORNO, AESTHETIC THEORY (1997); TERRY EAGLETON, THE
IDEOLOGY OF THE AESTHETIC (1990).
117
Rosenberg, supra note 8283, at 12.
118
See notes 1–4 supra.
119
See infra Part III.
120
See Farley, supra note 9, at 846, 849 (“Courts are not self-conscious or
explicit about the theories of art they are employing . . . . Their invocation of
these theories is intuitive, not deliberate.”).
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A. The Province of Copyright Law: Works by “Authors”
The Copyright Act provides that a fundamental requirement for copyright protection is that a work must be an “original
work [] of authorship,”121 but the Act neither defines “authorship”
nor “originality.”122 Courts have struggled with the meaning of
these terms, in no small part because defining them requires an implicit inquiry into the creative process. For instance, on the one
hand, the standard of “originality” is relatively low. It does not require novelty, ingenuity, or any particular benchmark of artistic
merit. On the other hand, however, an “original work of authorship” implies some “authorial” presence. A work must be “independently created by authors” and involve some minimal “creative
spark.”123 In the words of Benjamin Kaplan, “to make the copyright turnstile revolve, the author should have to deposit more than
a penny in the box.”124 Indeed, as the Supreme Court clarified in
Feist Publications, Inc. v. Rural Telephone Service Co., the mere
121
17 U.S.C. § 102(a). Prior to the 1976 Copyright Act’s explicit reference,
courts have traditionally read an originality requirement implicit in the copyright
statute. See Julie E. Cohen, COPYRIGHT IN A GLOBAL INFORMATION ECONOMY
57 (2010).. Countries around the world employ various standards of copyright
eligibility. Italy, France and several other European requirements require that a
work is the “personal expression” of the author.” Herman Cohen Jehoram, The
EC Copyright Directives, Economic and Authors’ Rights, 25 INT’L REV. IND.
PROP. & COPYRIGHT L. 821, 828 (1994). Japan has a stringent originality requirement that “thoughts or sentiments are expressed in a creative way” so to
“fall within the literary, scientific, artistic, or musical domain.” Michael J. Bastian, Protection of “Noncreative” Databases: Harmonization of United States,
Foreign and International Law, 22 B.C. INT’L & COMP. L. REV. 425, 433
(1999).
122
See 17 U.S.C. § 101.
123
In Feist Publications, Inc. v. Rural Telephone Service Co., the Supreme
Court emphasized that originality implies that a work is “independently created
by authors,” as opposed to “copied from other works.” 499 U.S. 340, 340
(1991). Still, the Supreme Court maintained the long-standing judicial standard
that “some creative spark” is required for a work to be eligible for copyright
protection: “There remains a narrow category of works in which the creative
spark is utterly lacking or so trivial as to be virtually non-existent . . . . Such
works are incapable of sustaining a valid copyright.” Id. at 340 (with reference
to Nimmer § 2.01[B])(holding that telephone white pages directory lacked the
minimal originality to satisfy the constitutional requirement of originality)).
124
Benjamin Kaplan, An Unhurried View of Copyright 46 (1967).
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investment of time and industrious labor (i.e., “sweat of the brow”)
does not justify copyright protection.125 The historical evolution of
the originality standard illustrates how issues of aesthetic determination loom large in disputes where the protectability of a work is
at issue.126
For instance, in expanding copyright protection to photographs in 1884, the Supreme Court distinguished photographs that
are the “original mental conception and intellectual invention of
the photographer” from unprotected photographs that consist of a
“mere mechanical reproduction of the physical features or outlines
of some object.”127 Although even “crude, humble, or obvious”
contributions to the arts are eligible for protection, some “creative
spark” is nevertheless required.128 This necessarily implicates a
crucial question: what is a creative, original work? In BurrowGiles v. Sarony, the Supreme Court held that a photograph of Oscar Wilde was protected, noting its qualities as a
“useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the
125
Feist, 499 U.S. at 349 (“The primary objective of copyright is not to reward the labor of authors,” but “to promote the Progress of Science and useful
Arts.” U.S. CONST. art. I, § 8, cl. 8.). Accord Twentieth Century Music Corp. v.
Aiken, 422 U.S. 151, 156 (1975).”). See also Jane C. Ginsburg, Creation and
Commercial Value: Copyright Protection of Works of Information, 90 COLUM.
L. REV. 1865 (1990).
126
For a description of the history of originality in copyright law, see Dale
P. Olson, Thin Copyrights, 95 W. VA. L. REV. 147 (1992) (focusing on copyright in compilations and the rejection of “sweat of the brow” and “industrious
compilation” to the Feist standard of originality).
127
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59 (1884) (finding
creative decisions in the selection and arrangement of clothing, lighting, and the
subject made photograph of Oscar Wilde an original work). See, e.g., Ets-Hokin
v. Skyy Spirits, Inc., 225 F.3d 1068, 1077-1082 (9th Cir. 2000) (“It is well recognized that photography is a form of artistic expression, requiring numerous
artistic judgments.”); Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.1992) ("Elements of originality in a photograph may include posing the subjects, lighting,
angle, selection of film and camera, evoking the desired expression, and almost
any other variant involved."); Eastern America Trio Prods, Inc. v. Tang Elec.
Corp., 97 F. Supp. 2d 395, 417 (S.D.N.Y. 2000) (“There is a very broad scope
for copyright in photographs, encompassing almost any photograph that reflects
more than slavish copying.”) (citation omitted).
128
Feist, 499 U.S. at 340
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same . . . entirely from his own original mental conception, to which he gave visible form by posing the
said Oscar Wilde in front of the camera, selecting
and arranging the costume, draperies, and other various accessories in said photograph, arranging the
subject so as to present graceful outlines, arranging
and disposing the light and shade, suggesting and
evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.129
Two different aesthetic theories animated the Court’s decision.
First, in order to assess whether the work was sufficiently creative,
the Court turned to the work’s physical form when it described the
photograph as “useful, new, harmonious, characteristic and graceful.”130 Second, the reference to the author’s creative “selection
and arrangement” of the photograph “implies that originality depends on the operation of a putative author’s mind, and not the features of the work itself.”131 Going forward, the Burrow-Giles precedent set courts on the path of both Formalistic and Intentionalist
interpretations of creative works.
After the strenuous attempt at sidestepping issues of artistic
form or intention in Bleistein,132 courts nevertheless returned to
such evaluations. In Alfred Bell & Co. v. Catalda Fine Arts, the
Second Circuit faced the difficult question whether mezzotint reproductions of classic works could receive copyright protection.133
The goal of the author may have been to create an exact replica of
the original, but the process of mezzotint engraving necessarily
created variations between the original and the reproduced versions. The court ignored the intent of the alleged author in favor of
an analysis of the physical form of the plaintiff’s work—a classic
example of a court deploying aesthetic Formalism. The court held
that any “distinguishable” variation between the original and sub129
Burrow-Giles, 111 U.S. at 60.
Id.
131
See Yen, supra note__, at 270.
132
See supra Part II.A for an extensive discussion of Bleistein and the development of the doctrine of avoidance.
133
Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 100 (2d Cir.
1951).
130
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sequent work is sufficient to support a copyright.134 Although the
court dismissed the notion that an author must intentionally create
a distinguishable work, discerning a “distinguishable” variation
forced courts back into the realm of aesthetic interpretation.135
It is also important to note that decisions about creativity
and originality are not presented to courts as simple binary yes/no
questions. Copyright disputes often compel courts to assess the degree of creativity. Even if a work is considered original enough to
receive protection, the amount of creativity affects the scope of
protection against infringement. Copyright law provides less protection (i.e., “thin copyright”) to works that involve only modest
levels of originality, as opposed to “thick copyright” for “more”
creative works.136 In general, if a work displays only minimal creativity, then only slavish copying or virtually identical reproductions will infringe on the copyright of the work.137As a result,
courts must distinguish between works that required less creativity
to produce and those on a higher creative plane.138 In other words,
134
Id. at 105 (“A copyist's bad eyesight or defective musculature, or a shock
caused by a clap of thunder, may yield sufficiently distinguishable variations.”).
135
Courts would adapt a hybrid version of Formal and Intentionalist analyses. For a discussion of originality in reproductions see infra, Part III.B.
136
Feist Publ’ns, Inc. v. Rural Tel. Servs. Co., 499 U.S. 340, 349 (1991)
(“The copyright in a factual compilation [involving a minimal degree of creativity] is thin.”).
137
As Judge Learned Hand observed: “The less developed the characters, the
less they can be copyrighted; that is the penalty an author must bear for marking
them too indistinctly.” Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d
Cir. 1930). See, e.g., Apple Computer v. Microsoft Corp., 35 F.3d 1435, 1447
(9th Cir. 1994) (noting that because the similarities in two software programs
came from basic ideas and their obvious expressions, the works as a whole
would have to be virtually identical for infringement to have occurred); Johnson
Controls Inc. v. Phoenix Control Systems Inc., 886 F.2d 1173, 1175 (9 th Cir.
1989) (finding thin copyright when there are only limited ways to express an
idea); Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606–
07 (1st Cir. 1988) (nothing that “mere identity of ideas” in two works is insufficient to give rise to infringement); see also David E. Shipley, Thin but Not Anorexic: Copyright Protection for Compilations and Other Fact Works, 15 J.
INTEL. P. 1 (2007).
138
Based on the writings by Ginsburg and Gorman, it has been suggested
that copyright infringement cases involve the distinction between “highauthorship” works (displaying “the individual personality of the author, through
expression of emotion, imagination, and artistic creativity”) and “lowauthorship” works (those with “rich ideas, facts, and ort useful information”).
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it is not sufficient for courts to merely identify an artistic contribution; judges must also discern and distinguish between various levels of creativity, thereby implicating aesthetic theory.139
B. A “Spark of Originality” in Derivative Works
When a creator has reproduced a work that is in the public
domain, an aesthetic evaluation of the “creative” differences between the original work and the reproduction is required.140 Courts
must distinguish between “trivial” or “mechanical” variations and
variations that have a “spark of originality”141 or that are “recognizably” that of the author.142
For example, in Alva Studios, Inc. v. Winninger the court
granted copyright protection to a replica of the public domain
Hand of God sculpture by Rodin.143 In doing so, the court praised
the “precise, artistic” qualities of the reproduction, and commended the “skill and originality” involved, paying close attention to
formal aspects of the derivative work:
“It is undisputed that the original sculpture owned
by the Carnegie Institute is 37 inches and that plainRonald B. Standler, Copyright Protection for Nonfiction or Compilations of
Facts in the USA (2009) (available at www.rbs2.com/cfact.pdf )[ Is this a book?
A journal article? Please provide a complete and locatable citation – its an
article available on line] (with reference to Robert Gorman, Copyright Protection for the Collection and Representation of Facts, 76 HARV. L. REV. 1569,
1570 (1963); Jane C. Ginsburg, Creation and Commercial Value: Copyright
Protection of Works of Information, 90 COLUM. L. REV. 1865, 1866–70 (1990)).
Within these groups, the degree of creativity also likely affects the scope of protection against infringement.
139
Infra III.B.
140
Alfred Bell & Co. v. Catalda Fine Arts, Inc. 191 F.2d 99 (2d Cir. 1951)
(setting a “distinguishable variation” standard to assess whether the author of the
derivative work has made an independent contribution).
141
Bridgeman Art Library, Ltd. V. Corel Corp., 36 F. Supp. 2d 191
(S.D.N.Y. 1999) (copyright is not available for “slavish” photographic copies of
classic paintings).
142
Alfred Bell & Co. v. Catalda Fine Arts, Inc. 191 F.2d 99 (2d Cir. 1951)
(mezzotint engravings of paintings sufficiently depart from underlying works to
qualify for copyright protection).
143
177 F. Supp. 265 (S.D.N.Y. 1959).
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tiff's copyrighted work is 18½ inches. The originality and distinction between the plaintiff’s work and
the original also lies in the treatment of the rear side
of the base. The rear side of the original base is
open; that of the plaintiff’s work is closed. We find
that this difference when coupled with the skilled
scaled sculpture is itself creative.”144
Similarly, in denying copyright protection to plastic novelty banks
in the shape of Uncle Sam, a character in the public domain, the
Second Circuit in L. Batlin & Son, Inc. v. Snyder stated that reproductions of works in the public domain must demonstrate a degree
of “true artistic skill” that extends beyond physical skills or training, creating a “substantial variation” of the original work.145 In
analyzing the various differences between the original public domain work and the work seeking protection, the court reviewed in
detail the formal differences between both works:
“[S]imilarities include, more importantly, the appearance and number of stripes on the trousers,
buttons on the coat, and stars on the vest and hat,
the attire and pose of Uncle Sam, the decor on his
base and bag, the overall color scheme, the method
of carpetbag opening, to name but a few.”
Yet, unlike in Alva, the court also considered the Institutional aspects of the original work: Rodin’s Hand of God is a work of different magnitude than the Uncle Sam Bank. The Batlin court noted
that the Uncle Sam Bank did not belong in a “category of substantial originality,” nor was the “creativity in the underlying work of
art of the same order of magnitude as in the case of Hand of God.
Rodin's sculpture is, furthermore, so unique and rare, and adequate
public access to it is such a problem, that a significant public bene144
Id. at 267.
536 F.2d 486 (2d Cir. 1976) (en banc). With regard to variations on copyrighted works, see Durham Industries v. Tomy Corp., 630 F.2d 905 (2d
Cir.1980) (introducing two-part test to assess copyright claim on a derivative
work by third party who does not hold the copyright on the underlying original
work); Entertainment Research Group, Inc. v. Genesis Creative Group, Inc. 122
F.3d 1211 (9th Cir. 1997) (in order to support a copyright claim, variations between original and derivate work must be more than trivial).
145
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fit accrues from its precise, artistic reproduction. No such benefit
was imagined to accrue from the “knock-off” reproduction of the
cast iron Uncle Sam Bank”. 146
To some degree, issues of distinguishable variation emerge
in all areas of the creative arts. For instance, in the context of realistic photographs of existing works, photos will receive copyright
protection as derivative works only if the photographer has “recast,
transform[ed], or adapted”147 the original work in an original manner that cannot be deemed trivial.148 Here as well, the degree of
creativity in the original work (being photographed) may factor
into how much, if any, copyright protection is granted to a derivative work.149
C. Useful or Expressive Works
Whenever a creative work also has utilitarian features, copyright law must assess the overall character of the work to determine whether it is eligible for copyright protection.150 If a work
146
Batlin, 536 F.2d at 859.
17 U.S.C. § 101.
148
SHL Imaging, Inc. v. Artisan Homes, Inc., 117 F.Supp.2d 301, 311
(S.D.N.Y.2000) (granting thin copyright protection on the “totality of the precise
lighting selection, angle of the camera, lens and filter selection” for photographs
of mirrored picture frames for promotional materials); Schrock v. Learning
Curve Intern., Inc., 586 F.3d 513 (2009) (granting copyright on pictures of toys
for promotional materials because the photographs possessed sufficient incremental original expression)
149
Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1080 1077–82 (9th Cir.
2000) (in determining issue of copyrightability and infringement of photographs
of bottle, the court analyzed the creativity of the original work that was being
photographed: “The Skyy vodka bottle, although attractive, has no special design or other features that could exist independently as a work of art. It is essentially a functional bottle without a distinctive shape.”).
150
The 1976 Copyright Act provides the following definition of pictorial,
graphic, and sculptural works: “Pictorial, graphic, and sculptural works include
two-dimensional and three-dimensional works of fine, graphic, and applied art,
photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined
in this section, shall be considered a pictorial, graphic, or sculptural work only
if, and only to the extent that, such design incorporates pictorial, graphic, or
147
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primarily serves utilitarian purposes, its protection is the province
of patent law.151 In the overall scheme of intellectual property law,
“technical” innovations belong in the patent sphere while “artistic”
contributions belong in the copyright sphere.152
But the practical implementation of this fundamental premise has proven to be extremely difficult. To exclude useful articles
from protection, copyright law must draw a line between articles
that serve a useful purpose and those that are merely aesthetically
pleasing. Here, once again, courts are forced to engage in aesthetic
evaluation.
The Copyright Act instructs courts to grant copyright protection only if a work contains aesthetic features that “can be identified separately from, and are capable of existing independently
sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101.
See Robert C. Haumbart, Eternal Wavering Line—The Continuing Saga of Mazer v. Stein , 6 HAMLINE L. REV. 95 (1983).
151
Esquire, Inc. v. Ringer, 591 F.2d 796 (D.C. Cir.1978), cert. denied, 440
U.S. 908, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979) (lighting fixtures designed with
unusual elliptically shaped housings not eligible for copyright protection as
works of art because there were no separately identifiable artistic elements). The
court noted that 1976 Act found ineligible for copyright “the overall design or
configuration of a utilitarian object, even if it is determined by aesthetic as well
as functional considerations.” Id. at 804.
152
The seminal case is Baker v. Selden, 101 U.S. 99, 102 (1879). In
Baker, the Court held that a system of book-keeping is not copyright eligible
subject-matter: “To give to the author of the book an exclusive property in the
art described therein when no examination of its novelty has ever been officially
made would be a surprise and a fraud upon the public. That is the province of
letters patent, not of copyright. The claim to an invention or discovery of an art
or manufacture must be subjected to the examination of the Patent Office before
an exclusive right therein can be obtained, and it can only be secured by a patent
from the government.” Id. at 102. On the problematic nature of granting copyright for useful articles, see, e.g., Julie E. Cohen & Mark A. Lemley, Patent
Scope and Innovation in the Software Industry, 89 CAL. L. REV. 1, 26–27
(2001) ("A variety of doctrines historically have served to channel certain sorts
of innovation (technical) into the patent sphere and other sorts (artistic) into the
copyright sphere."); Viva Moffat, Mutant Copyright and Backdoor Patents: The
Problem of Overlapping Intellectual Property Protection, 19 BERKELEY TECH.
L. J. 1473, 1512–13 (2004) (“Overlapping protection in these areas disrupts both
the patent and copyright bargains. Each of these bargains falls apart when an
alternative form of protection is available for the invention or creative work.”).
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of, the utilitarian aspects.”153 Additionally, when a work’s useful
and aesthetic features are so intertwined that they cannot be separated physically, courts must consider whether there is conceptual
separability between the form and function of a work, with copyright extending only to the form.
In order to establish whether separate, copyrightable features are present, courts apply opposing artistic theories of interpretation, often mixing various incompatible theories together in
one decision. For instance, in Kieselstein-Cord v. Accessories by
Pearl, Inc., the Second Circuit held that useful aspects of decorative belt buckles could be sufficiently separated from their ornamental, aesthetic features.154 In finding that the buckles in question
“rise to the level of creative art,” the court referred to the intention
of the author,155 but also noted that the buckles were well received
in art and fashion circles.156 Institutional interpretations surfaced as
well when the court rejected the notion that the utilitarian nature of
fashion items excludes such articles from copyright protection:
“[B]ody ornamentation has been an art form since the earliest days,
as anyone who has seen the Tutankhamen or Scythian gold exhibits at the Metropolitan Museum will readily attest.”157 In other
words, fashion items can be art when they are perceived as such by
society.
153
17 U.S.C. § 101.
632 F.2d 989, 990 (2d Cir. 1980) Based on Intentionalism and Institutionalism, the court held: “Although plaintiff asserts that the buckles are jewelry
or sculpture, they appear to be primarily belt buckles. Belt buckles are utilitarian
objects designed to fasten belts and thus hold up or hold in a dress, skirt, or
pants. Like most utilitarian objects, particularly those worn or carried on the
person or used in the home, belt buckles may also be decorative.”
155
Id. at __ (“Explaining why he named the earlier buckle design ‘Winchester,’ the designer said that he saw ‘in (his) mind’s eye a correlation between the
art nouveau period and the butt of an antique Winchester rifle’ and then ‘pulled
these elements together graphically.’”).
156
(“Sales of both buckles were made primarily in high fashion stores and
jewelry stores, bringing recognition to appellant as a ‘designer.’ This recognition
included a 1979 Coty American Fashion Critics’ Award for his work in jewelry
design as well as election in 1978 to the Council of Fashion Designers of America. Both the Winchester and the Vaquero buckles, donated by appellant after
this lawsuit was commenced, have been accepted by the Metropolitan Museum
of Art for its permanent collection.”).
157
Id. at__.
154
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In a different decision by the same circuit, however, the
court employed a strict Formalist approach, finding that it was impossible to distinguish between the expressive and useful aspects
of human torso sculptures that had been used as mannequins.158
The Carol Barnhart court reasoned that mannequin forms are not
aesthetic creations because they conform to realistic proportions
(e.g., “the life-size configuration of the breasts and the width of the
shoulders”).159 In a spirited dissent, however, Judge Newman advocated a Reader-Response approach to conceptual separability:
How, then, is ‘conceptual separateness’ to be determined? In my view, the answer derives from the word
‘conceptual.’ For the design features to be ‘conceptually separate’ from the utilitarian aspects of the useful article that embodies the design, the article must stimulate
in the mind of the beholder a concept that is separate
from the concept evoked by its utilitarian function. The
test turns on what may reasonably be understood to be
occurring in the mind of the beholder or, as some might
say, in the ‘mind’s eye’ of the beholder. This formulation requires consideration of who the beholder is and
when a concept may be considered ‘separate.’ I think
the relevant beholder must be that most useful legal
personage—the ordinary, reasonable observer.160
Two years later, an entirely different theory of artistic evaluation emerged in the same circuit in Brandir International, Inc. v.
Cascade Pacific Lumber Co.: the “merger test.”161 In denying copyright protection on the RIBBON bicycle rack,162 Judge Oakes
mixed together both Formalism and Intentionalism, while explicit158
Carol Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411, 419 (2d
Cir. 1985) (analysis based on Formalism).
159
Id. at 419.
160
Id. at 422.
161
“If design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable
from the utilitarian elements.” Brandir Int’l, Inc. v. Cascade Pac. Lumber Co.,
834 F.2d 1142, 1143 (2d Cir. 1987) (with reference to Robert C. Denicola, Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful
Articles, 67 MINN. L. REV. 707, 741 (1983))
162
The “Ribbon Bike Rack” is a unique bicycle rack that consists of “graceful curves of tubular steel”. See <http://www.ribbonrack.com/>.
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ly rejecting a Reader-Response interpretation.163 The court began
with a strict formal analysis:
In creating the RIBBON Rack, the designer has clearly
adapted the original aesthetic elements to accommodate
and further a utilitarian purpose. These altered design
features of the RIBBON Rack, including the
spacesaving, open design achieved by widening the upper loops to permit parking under as well as over the
rack's curves, the straightened vertical elements that allow in- and above-ground installation of the rack, the
ability to fit all types of bicycles and mopeds, and the
heavy-gauged tubular construction of rustproof galvanized steel, are all features that combine to make for a
safe, secure, and maintenance-free system of parking
bicycles and mopeds. . . . Moreover, the rack is manufactured from 2 3/8-inch standard steam pipe that is
bent into form, the six-inch radius of the bends evidently resulting from bending the pipe according to a standard formula that yields bends having a radius equal to
three times the nominal internal diameter of the pipe.164
But then the court looked to the artist’s intentions, noting that “he
did not give any thought to the utilitarian application of any of his
sculptures.”165 Ultimately, the court denied copyright protection to
the RIBBON Rack because the author had adapted the original aesthetic elements to accommodate the sculpture’s purpose as a bicycle rack. As a result of these adaptations, the sculpture “no longer
reflect[ed] the unconstrained perspective of the artist”;166 it did not
163
The court rejected the Reader-Response theory advocated by Judge
Newman: “[I]t is not enough that, to paraphrase Judge Newman, the rack may
stimulate in the mind of the reasonable observer a concept separate from the
bicycle rack concept.” Brandir, 834 F.2d at 1145.
164
Id. at 1142.
165
Id. at 1143.
166
Id. at 1146. For an application of the Second Circuit’s test by the Seventh Circuit, see Pivot Point Int’l v. Charlene Prods., Inc., 372 F.3d 913 (7th Cir.
2004) (determining that the design of a mannequin head meant to depict a fashion model satisfied conceptual separability because the designer’s judgment was
unaffected by functional concerns). See also Mannequin Head Depicting “Hungry Look” High-Fashion Runway Model is Protected by Copyright, After All,
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matter that the (altered) final product was widely celebrated as a
highly functional, creative design.167
As these opposing opinions of the Second Circuit illustrate,168
courts face a difficult challenge determining conceptual separability. But by randomly switching between major aesthetic theories
that are theoretically incompatible, courts make this challenge even
more difficult for themselves, and as a consequence, the case law
fails to provide artists with guidance as to the scope of protection
available to such works.
D. Creative Transformations as Fair Use
Artistic determinations are inescapable when courts decide
disputes involving alleged “fair” uses of copyrighted
al.169Aesthetic sensitivity is especially important to the first factor
of the fair use test, which requires courts to assess the “purpose
and character” of a purported fair use.170 The relevant inquiry is
Federal Appellate Court Rules, ENTERTAINMENT LAW REPORTER, Nov.
2004, at 18 (discussing the Seventh Circuit’s decision in Pivot Point).
167
Brandir, 834 F.2d at 1146 (“The RIBBON Rack has been featured in
Popular Science, Art and Architecture, and Design 384 magazines, and it won
an Industrial Designers Society of America design award in the spring of 1980.
In the spring of 1984 the RIBBON Rack was selected from 200 designs to be
included among 77 of the designs exhibited at the Katonah Gallery in an exhibition entitled ‘The Product of Design: An Exploration of the Industrial Design
Process,’ an exhibition that was written up in the New York Times.”).
168
1 PAUL GOLDSTEIN, COPYRIGHT: PRINCIPLES, LAW AND PRACTICE
§ 2.5.3, at 99 (1989) (“Of the many fine lines that run through the Copyright
Act, none is more troublesome than the line between protectable pictorial,
graphic and sculptural works and unprotectable utilitarian elements of industrial
design.”). For an overview, see John Fowles, The Utility of Bright Line Rules in
Copyright Law: Freeing Judges from Aesthetic Controversy and Conceptual
Separability in Leicester v. Warner Bros., 12 UCLA ENT. L. REV. 301 (2005).
169
Following Article 107 of the Copyright Act, “fair” uses of copyrighted
materials are not an infringement of copyright. Courts must determine on a caseby-case basis whether any particular use of copyrighted work is fair. 17 U.S.C.
§ 107.
170
The judicially developed fair use test commands courts to consider at
least four different aspects of any fair use dispute: (1) the purpose and character
of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4)
the effect of the use upon the potential market for or value of the copyrighted
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whether the allegedly infringing work merely “supersedes the objects of the original creation, or instead adds something new, with
a further purpose or different character, altering the first with new
expression, meaning, or message.”171 A fair use finding is more
likely if “the secondary use adds value to the original—if [the original work] is used as raw material, transformed in the creation of
new information, new aesthetics, new insights and understandings.”172
Sometimes the determination of the “character” of an allegedly infringing use is straightforward—e.g., when a work is copied
verbatim.173 Many other disputes, however, involve situations in
which a defendant has integrated copyrighted material into a creative work without permission. In these instances, courts must dissect the “relationship” between the original, copyrighted material
and the allegedly infringing work in order to assess whether the
use is “of the transformative type that advances knowledge and the
progress of the arts or whether it merely repackages, free riding on
another’s creations.”174
work. 17 U.S.C. § 107. In the words of Judge Leval, the first factor is “the soul
of fair use.” Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV.
1105, 1116 (1990).
171
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)
(“[T]ransformative works . . . lie at the heart of the fair use doctrine’s guarantee
of breathing space . . . .”). See also Folsom v. Marsh, 9 F. Cas. 342, 348, No.
4,901) (C.C.D. Mass. 1841). [
172
Castle Rock Entertainment v. Carol Publ'g Group, 150 F.3d 132, 142 (2d Cir.
N.Y. 1998) (quoting Leval, supra note 170174, at 1111).
173
Even whole-sale copying may qualify for fair use if the copied material
is, for instance, not very extensive or created for educational purposes. For examples of fair use determinations in this context, see, e.g., SOFA Entertainment,
Inc. v. Dodger Prods., Inc., No. 2:08-cv-02616 (9th Cir. Mar. 11, 2013) (finding
fair use where a seven-second clip from the Ed Sullivan Show was used in a
staged musical history); Religious Tech. Ctr. v. Pagliarina, 908 F. Supp. 1353
(E.D. Va. 1995) (finding fair use where the Washington Post used three brief
quotations from Church of Scientology texts). Short excerpts and news commentary are not always granted fair use immunity, however. See, e.g., Harper &
Row v. Nation Enters., 471 U.S. 539 (1985) (public interest in learning of that
political figure's account of an historic event did not render fair scoop on unpublished book); Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70 (2d
Cir. 1997) (fair use defense rejected when a copy of a poster of a quilt appeared
in a sitcom for 27 seconds).
174
Leval, supra note 170174, at 1116.
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When drawing a line between new works that transform a preexisting work and works that are more derivative in nature, courts
must rely on some comparative standard in order to evaluate the
relationship between the original and the infringing works. Here,
again, courts knowingly or inadvertently rely on aesthetic theories
of interpretation. At times, courts seek to decipher the author’s’
intentions. In Blanch v. Koons, for instance, a fair use finding rested on the observation that “Koons [was], by his own undisputed
description, using Blanch’'s image as fodder for his commentary
on the social and aesthetic consequences of mass media. His stated
objective is[was] thus not to repackage Blanch's “ ‘Silk Sandals,’”
but to employ it “in the creation of new information, new aesthetics, new insights and understandings.”175 At other times, courts resort to a more Fformalistic mode of analysis in order to appraise
the purpose and character of the defendant’s work. For instance,
when toy-maker Mattel sued the artist Tom Forsythe over a series
of seventy-eight photographs entitled “Food Chain Barbie,” in
which he depicted Barbie in various absurd and often sexualized
positions. The court analyzed Food Chain Barbie’s configuration
in great detail, focusing on the lighting, background, props, and
camera angles of the photographs.176
175
Blanch v. Koons, 467 F.3d 244, 255 (2d Cir. 2006) (citation omitted);
see also id. at 252–53 (“The question is whether Koons had a genuine creative
rationale for borrowing Blanch's image.”).
176
Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 802–03 (9th Cir.
2003) (“Forsythe turns this image on its head, so to speak, by displaying carefully positioned, nude, and sometimes frazzled looking Barbies in often ridiculous
and apparently dangerous situations. His lighting, background, props, and camera angles all serve to create a context for Mattel's copyrighted work that transform Barbie's meaning. Forsythe presents the viewer with a different set of associations and a different context for this plastic figure. In some of Forsythe's photos, Barbie is about to be destroyed or harmed by domestic life in the form of
kitchen appliances, yet continues displaying her well known smile, disturbingly
oblivious to her predicament. As portrayed in some of Forsythe's photographs,
the appliances are substantial and overwhelming, while Barbie looks defenseless.”). For other prominent examples of Formalism in fair use parody disputes,
see, e.g., Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394,
1401 (9th Cir. 1997) (holder of copyrights and trademarks for children’s books
brought action against publisher that intended to publish parody of O.J. Simpson
murder trial written in style of books’ author) (“While Simpson is depicted 13
times in the Cat's distinctively scrunched and somewhat shabby red and white
stove-pipe hat, the substance and content of The Cat in the Hat is not conjured
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36
Occasionally, courts combine the concepts of Intentionalism
and Formalism. For example, the Eleventh Circuit applied formal
analysis to the configuration of a parody of Gone with the Wind in
order to assess the credibility of the authors’ stated objectives in
the litigation—to destroy the “perspective, judgments, and mythology of Gone with the Wind, which is derisive of black people.”177
Other judicial decisions on fair use mirror the ReaderResponse theory. For instance, in the classic fair use decision involving 2 Live Crew’s rap version of Roy Orbison’s classic song
Pretty Woman, the Supreme Court ultimately determined––based
on a detailed eye-of-the-beholder analysis––that 2 Live Crew’s
up by the focus on the Brown–Goldman murders or the O.J. Simpson trial. Because there is no effort to create a transformative work with “new expression,
meaning, or message,” the infringing work’s commercial use further cuts against
the fair use defense.” (with reference to Campbell v. Acuff-Rose Music, 114 S.
Ct. 1164; 127 L. Ed. 2d 500); Abilene Music, Inc. v. Sony Music Entm't, Inc.,
320 F. Supp. 2d 84, 90–91 (S.D.N.Y. 2003) (finding that rapper Ghostface
Killah's “sarcastic” use of What a Wonderful World was protected as parody)
(“Where the most famous recording of Wonderful World is lushly orchestrated,
with strings playing the melody in a major key, evoking a feeling of peace and
harmony, The Forest’s version is recited a cappella, with a single male singer
intoning the words off-key, in a tone that might reasonably be perceived as sarcastic. The final line of the quotation, “And I say to myself, what a wonderful
world,” sounds positively ominous: While in the original, the melody ascends to
the phrase “wonderful world,” in The Forest, the entire line is intoned on a single note, negating the optimistic, happy feeling created by the original.”).
177
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1270 (11th Cir.
2001) (establishing fair use finding because book is a critical statement that
“seeks to rebut and destroy the perspective, judgments, and mythology of Gone
with the Wind. . . . Randall's literary goal is to explode the romantic, idealized
portrait of the antebellum South during and after the Civil War”). The court’s
formal analysis is illustrated by the following passage in the decision: “Where
Randall refers directly to Mitchell's plot and characters, she does so in service of
her general attack on GWTW. In GWTW, Scarlett O'Hara often expresses disgust
with and condescension towards blacks; in TWDG, Other, Scarlett's counterpart,
is herself of mixed descent. In GWTW, Ashley Wilkes is the initial object of
Scarlett's affection; in TWDG, he is homosexual. In GWTW, Rhett Butler does
not consort with black female characters and is portrayed as the captain of his
own destiny. In TWDG, Cynara ends her affair with Rhett's counterpart, R., to
begin a relationship with a black Congressman; R. ends up a washed out former
cad. In TWDG, nearly every black character is given some redeeming quality—
whether depth, wit, cunning, beauty, strength, or courage—that their GWTW
analogues lacked.” Id. at 1270–71.
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song could reasonably be perceived by the public as a comment on
the original song.178
Lastly, in a recent decision involving fair use of photographs, the Second Circuit applied all three major aesthetic theories.179 Parts of the decision relied heavily on Intentionalist arguments by referring to the stated intentions of the author.180 Other
parts focused on Formalist elements assessing the expressive nature of the work in reference to its composition, presentation, scale,
color palette, and medium.181 But ultimately, the court grounded its
178
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994). The
court held that the rap version of Roy Orbison’s classic Pretty Woman could be
perceived as a parody, explaining: “While we might not assign a high rank to the
parodic element here, we think it fair to say that 2 Live Crew's song reasonably
could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy
comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief
from paternal responsibility. The later words can be taken as a comment on the
naïveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.” Id.
179
See Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).
180
Id. at 706–07 (“Prince's deposition testimony further demonstrates his
drastically different approach and aesthetic from Cariou's. Prince testified that
he ‘[doesn’t] have any really interest in what [another artist’s] original intent is
because . . . what I do is I completely try to change it into something that’s completely different. . . . I’m trying to make a kind of fantastic, absolutely hip, up to
date, contemporary take on the music scene.’”) (quoting Prince Dep. 338:4339:3, Oct. 6, 2009.). For a critical discussion of the case, see Anthony Rodriguez, The Destructive Impulse of Fair Use after Cariou v. Prince, DEPAUL L.
REV,
forthcoming
(2013),
available
at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328855 (last visited Feb.
10, 2014).
181
Cariou, 714 F.3d at 706 (“Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the
other hand, are hectic and provocative. Cariou’s black-and-white photographs
were printed in a 9 1/2″ x 12″ book. Prince has created collages on canvas that
incorporate color, feature distorted human and other forms and settings, and
measure between ten and nearly a hundred times the size of the photographs.
Prince’s composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive
nature of Prince’s work.”).
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fair use finding in arguments that closely resembled ReaderResponse (how the work “appears to the reasonable viewer”).182
Again, the problem is not that courts draw from aesthetics
in their opinions—this is unavoidable—but rather that they so often switch between, and blend together, incompatible theories. Is a
work transformative because of the configuration of its elements,
because the stated intentions of its author are clear and credible, or
because of how it will be understood by its audience? Aesthetic
theory teaches that each of these questions is valid in certain contexts, but if courts ask them all together it leads to a doctrinal donnybrook. As such, copyright doctrine is in desperate need of a uniform, coherent approach to deciding which is the right question to
ask.
IV. A “COMMUNITY OF PRACTICE” PROPOSAL
Surprisingly, the answer to this riddle can be drawn from
its source: Bleistein. Courts have often read Justice Holmes’s
warning as a general proscription on aesthetic determinations,183
but Bleistein may be read more narrowly so as only to constrain
aesthetic determinations in instances where judges are “trained only to the law.”184 By implication, if a judge were trained in aesthetics as well as law, then it would be permissible under Bleistein for
her to apply her aesthetic knowledge in settling a dispute.185 Indeed, Holmes specifically envisioned that judges would do so, saying that even judges who lack artistic education may make aesthetic determinations within “the narrowest and most obvious lim-
182
Id. at 707 (“What is critical is how the work in question appears to the
reasonable observer, not simply what an artist might say about a particular piece
or body of work. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to
do so. Rather than confining our inquiry to Prince’s explanations of his artworks, we instead examine how the artworks may ‘reasonably be perceived’ in
order to assess their transformative nature.”).
183
See Farley, supra note 9, at 815.
184
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903)
(emphasis added).
185
See Farley, supra note 9, at 817–18.
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its.”186 Thus, while many courts have read Bleistein as mandating
an avoidance of aesthetic questions, Holmes’s language in the case
supports the opposite conclusion: courts may make aesthetic judgments so long as they are sufficiently well-informed.187
However, it is not enough for courts merely to be conversant in
art and art history. In order to avoid the discrepancies that have
resulted from applying aesthetic theory in an ad hoc manner,188
courts need to adopt a more consistent methodology for analyzing
aesthetic questions. The simplest method would be for the Supreme Court to nominate a single aesthetic theory that would apply
in all cases where aesthetic questions arise.189 But such a brightline approach is undesirable for at least two reasons. First, no single aesthetic theory is sufficiently broad to account for all manifestations of artistic practice.190 Therefore, to give preference to one
aesthetic theory over all others would result in some recognized
forms of art being incorrectly interpreted and, at worst, being disregarded. Additionally, establishing a rigid precedent for aesthetic
judgments would reduce artistic diversity, foreclosing novel expressive forms that deviate from the theoretical standard.191 As
186
Bleistein, 188 U.S. at 251.
See Farley, supra note 9, at 818. Some courts have done precisely that.
See, e.g., Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 111 (2d Cir.
1998) (likening a magazine photograph of actress Demi Moore naked and pregnant to Botticelli’s Birth of Venue, including a complete art-historical iconography of the “Venus Pudica” pose).
188
See Part III supra. See also Yen, supra note 2223, at 298 (“[F]amiliarity
with aesthetic theory shows that courts are essentially swapping one set of aesthetic premises for others in response to the facts of particular cases.”).
189
See Yen, supra note 2223, at 300.
190
Compare BELL, supra note 3132, at 17 (defining a formalist approach to
art criticism) with Beardsley, supra note 3436, at 21 (“[A]n artwork is something produced with the intention of giving it the capacity to satisfy the aesthetic
interest.”) and DICKIE, supra note 3638, at 35–37 (arguing that an object becomes art when it is presented to members of the art world for aesthetic consideration).
191
See, e.g., Rosenberg, supra note 8283, at 12 (“No one can say with assurance what a work of art is—or, more important, what is not a work of art.”);
Danto, supra note 3638, at __ (discussing the aesthetic differences between Pop
Art and Modern Art). Cf. Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue,
69 TEXAS L. REV. 1853, 1864–77 (1991) (arguing that intellectual property
187
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such, a Court-sanctioned aesthetic theory could operate as a covert
form of censorship that would chill aesthetic innovation, just as
Justice Holmes feared.192
For instance, suppose the Court were to adopt Formalism as its
exclusive aesthetic theory.193 In this scenario, courts could make
aesthetic distinctions solely on the basis of the precise configuration of a work’s elements that provoke “aesthetic emotion” (e.g.,
size, shape, color, meter, timbre, rhythm, pattern, etc.). 194 Courts
would not be permitted to consider the artist’s state of mind or intention in creating the work.195 If we were then to apply this analytical framework to Marcel Duchamp’s “readymade” 196 sculpture
Fountain197—widely considered the most influential artwork of the
rights control the meaning of texts and suppress unapproved meanings created
by certain readers and users of the texts).
192
See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251–52
(1903) (“[C]opyright would be denied to pictures which appealed to a public
less educated than the judge. Yet if they command the interest of any public—it
would be bold to say that they have not an aesthetic or educational value—and
the taste of any public is not to be treated with contempt.”).
193
Perhaps on the basis that Formalism most closely corresponds to the interpretative approach followed by most lay observers. See Yen, supra note 2223,
at 262.
194
Seenotes 3132–Error! Bookmark not defined.33 supra and accompanying text.
195
See, e.g., BELL, supra note 3132, at 19 (“In pure aesthetic, we have only
to consider our emotion and its object: for the purposes of aesthetics we have no
right, neither is there any necessity, to pry behind the object into the state of
mind of him who made it.”); William K. Wimsatt & Monroe C. Beardsley, The
Intentional Fallacy, in THE VERBAL ICON: STUDIES IN THE MEANING OF POETRY
18 (1954) (arguing that an author’s “intended meaning” is irrelevant to the analysis of a literary work); see also Clement Greenberg, Modernist Painting, in
ART IN THEORY: 1900-1990: AN ANTHOLOGY OF CHANGING IDEAS 754–60
(Charles Harrison & Paul Woods, eds., 1993).
196
A readymade is an “ordinary object elevated to the dignity of art by the
mere choice of an artist.” See ANDRÉ BRETON & PAUL ÉLUARD, DICTIONNAIRE
ABRÉGÉ DU SURRÉALISME (Surrealist Dictionary) (1938).
197
For this piece, Duchamp purchased a standard, mass-produced porcelain
urinal, turned it on its side, signed the base using the pseudonym “R. Mutt,” and
exhibited it as the “readymade” sculpture. See CALVIN TOMKINS, DUCHAMP: A
BIOGRAPHY 181 (1996). A provocation against then-prevailing artistic standards
that favored the visual sophistication of an artwork over the originality of its
ideas, Duchamp intended Fountain and his other readymade pieces to extend the
types of expressive works considered to be art. See id. at 186. Perhaps not surprisingly, Fountain has retained its ability to provoke into the present day. See,
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20th Century198—the piece would fail to qualify. From a Formalist
perspective, the physical qualities of Fountain are indistinguishable from a mere functional object (i.e., a urinal), so it lacks formal
elements that would bring about an aesthetic experience.199 As this
example illustrates, if courts followed Formalism exclusively, they
would be blinded to the aesthetic theories that has informed much
of 20th and 21st Century creative practice.200 This blindness, in
turn, would have a considerable chilling effect on future conceptbased works that deemphasize the making of aesthetically pleasing
objects in favor of expressions of art-as-an-idea.201
Suppose, instead, that the Court were to choose Intentionalism
as its preferred aesthetic theory. This theoretical orientation would
admit a far greater range of expressive practices than would Formalism.202 However, discovering the substantive meaning of a
work from its author’s professed intentions would create significant evidentiary problems and opportunities for outright chicanery.
e.g., STEPHEN HICKS, EXPLAINING POSTMODERNISM: SKEPTICISM AND SOCIALISM FROM ROUSSEAU TO FOUCAULT 196 (2004) (“The artist is a not great creator—Duchamp went shopping at a plumbing store. The artwork is not a special
object—it was mass-produced in a factory. The experience of art is not exciting
and ennobling—at best it is puzzling and mostly leaves one with a sense of distaste. But over and above that, Duchamp did not select just any ready-made object to display. In selecting the urinal, his message was clear: Art is something
you piss on.”).
198
See Duchamp’s Urinal Tops Art Survey, BBC NEWS (Dec. 1, 2004),
available at http://news.bbc.co.uk/2/hi/entertainment/4059997.stm.
199
Bell, supra note 3031. See also Yen, supra note 2223, at 253 (“[T]he key
to defining art is the identification of the peculiar qualities that enable certain
objects, but not others, to provoke this ‘aesthetic emotion.’”).
200
See Jerry Saltz, Idol Thoughts: The Glory of Fountain, Marcel Duchamp’s Ground-breaking “Moneybags Piss Pot”, VILLAGE VOICE (Feb. 21,
2006), available at http://www.villagevoice.com/2006-02-21/art/idol-thoughts/.
201
Examples include Dada, Minimalism, Process art, Performance art, Conceptual art, Appropriation art, and more. See generally JONATHAN FINEBERG,
ART SINCE 1940: STRATEGIES OF BEING 14–17 (1995); IRVING SANDLER, ART OF
THE POSTMODERN ERA: FROM THE LATE 1960S TO THE EARLY 1990S 332–74
(1996); Lucy LIPPARD, SIX YEARS: THE DEMATERIALIZATION OF THE ART OBJECT (1973)(cataloguing various art-making strategies that deemphasis the aesthetic qualities of a work of art for its intellectual content).
202
Though, interestingly, under a strict Intentionalism aesthetic Duchamp’s
Fountain would still fail to qualify as art, on the basis that the producer of the
urinal did not create it with the intent that it be displayed as an art object. See
Yen, supra note 2223, at 258.
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For instance, it would be difficult to divine, with any measure of
precision, the exact intentions of a deceased or otherwise unavailable artist.203 Further, artists could disclaim having had artistic intentions,204 be unable to adequately express what their artistic intentions were, or strategically reimagine their intentions ex post
facto to benefit their litigation posture. And, perhaps most importantly, artists’ intentions might not align with the actual result
of their labors, as is the case with so-called “happy accidents.”205
Such interpretative and inferential challenges are not insurmountable—criminal courts regularly overcome similar obstacles to ascertain a defendant’s mens rea. But given that courts are reluctant to
engage in aesthetic thought generally, the adoption of an
Intentionalist standard would likely be met with resistance and
possible avoidance.
An alternative way that courts might approach aesthetic judgments is through the lens of the “ordinary observer” test used to
determine substantial similarity.206 This test does not involve “analytic dissection and expert testimony,”207 but rather depends on
whether the accused work has appropriated the “total concept and
feel” of the copyrighted work.208 So, rather than surveying different theories to map out the best aesthetic topography for a particular work, courts could instead address questions of law in the same
203
See Wimsatt & Beardsley, supra note 8586, at 18 (“Critical inquiries are
not settled by consulting the oracle.”).
204
See, e.g., Harold Rosenberg, De-Aestheticization, NEW YORKER 62–67
(Jan. 24, 1970) (discussing Robert Morris, who signed a statement disclaiming
any aesthetic content in one of his works).
205
See, e.g., Liz Massey, Embracing Creative Failure II: Cultivating Happy
Accidents,
CREATIVE
LIBERTY (Jan.
24,
2009),
http://creativeliberty.wordpress.com/2009/01/24/embracing-creative-failure-iicultivating-happy-accidents/.
206
Here, we speak of substantial similarity in the sense of the comparison
made between works for purposes of ascertaining whether misappropriation has
occurred, as opposed to the use of substantial similarity (also termed “probative”
or “striking” similarity) to determine whether copying has occurred. See, e.g.,
Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946) (“If evidence of access is
absent, the similarities must be so striking as to preclude the possibility that
plaintiff and defendant independently arrived at the same result.”).
207
Id.
208
Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir.
1970). See also Sid & Marty Krofft Television Prods., Inc. v. McDonald’s
Corp., 562 F.2d 1157, 1165–67 (9th Cir. 1977).
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way that juries address questions of fact: by relying upon their intuitive sense of whether the “aesthetic appeal of the work is the
same” to the eyes of a lay observer.209
The problems with this approach, however, are myriad. For
one, use of an ordinary observer test in this way would only perpetuate the doctrinal inconsistencies discussed above.210 A work’s
“total concept and feel” is inherently subject to the quirks of individual taste and sophistication, and so decisions of law based on it
are no more likely to be consistent than decisions subscribing to
the doctrine of avoidance.211 Both approaches result in courts making ad hoc aesthetic determinations that provide little guidance to
future litigants, or to the law generally. Likewise, for all its shortcomings, the doctrine of avoidance at least has the benefit of imposing a measure of judicial modesty that guards against the dangers of discrimination and chilling that Justice Holmes warned
against.212
Furthermore, the ordinary observer test is itself theoretically
problematic. At its connotative root, the “total concept and feel”
test213 evokes incompatible aesthetic views. For instance, the “concept” of a work cannot be established merely from its formal qualities. Rather, the trier-of-fact must consider external references such
as an author’s professed intentions, contemporaneous artistic practices, art history, social mores, cultural symbols, and more.214 Because of this, consideration of a work’s “concept” necessitates the
use of Intentionalism or Reader-Response theory (and most likely
both).215 By contrast, the “feel” of a work might come directly
209
Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d
Cir. 1960). (“[T]he ordinary observer, unless he set out to detect the disparities,
would be disposed to overlook them, and regard their aesthetic appeal as the
same.”).
210
See supra Part III.
211
See supra Part II.A (discussing the doctrine of avoidance).
212
See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251–52
(1903).
213
See Roth Greeting Cards, 429 F.2d at 1110.
214
See supra note 3638 and accompanying text; see also Farley, supra note
9, at 844.
215
See, e.g., Monroe C. Beardsley, An Aesthetic Definition of Art, in WHAT
IS ART? 15, 21 (1983) (“[A]n artwork is something produced with the intention
of giving it the capacity to satisfy the aesthetic interest.”); see also Farley, supra
note 9, at 843.
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from the work’s aesthetic qualities (Formalism),216 or it could be
influenced by the context in which the work is received (ReaderResponse).217 Therefore, by requiring both “concept” and “feel,”
the ordinary observer test implicitly creates an aesthetic dissonance
that cannot be resolved harmoniously by courts.
Luckily, these difficulties can largely be avoided by reorienting
the debate from what aesthetic theory should be applied to how
courts should go about selecting which theory to apply—in other
words, by shifting the question from the substantive to the procedural. This reorientation can be achieved through the judicial adoption218 of a “Community of Practice” standard for aesthetic questions.219
216
See Yen, supra note 2223, at 253 (“[T]he key to defining art is the identification of the peculiar qualities that enable certain objects, but not others, to
provoke this ‘aesthetic emotion.’”).
217
For instance, a musician playing the same piece in a train station or in a
concert hall will elicit a completely different “feel” from the audience. See Gene
Weingarten, Pearls Before Breakfast: Can One of the Nation’s Great Musicians
Cut Through the Fog of a D.C. Rush Hour? Let’s Find Out, WASHINGTON POST
MAGAZINE (Apr. 8, 2007) (experiment conducted in which violin virtuoso Joshua Bell played on a D.C. Metro train platform and was mostly ignored by commuters)
218
An argument could be made here that courts are logically inconsistent in
their decision-making in copyright cases not because of deficiencies in copyright
doctrine, but because judges decide based on intuitive or normative considerations rather than reflection upon abstract principles, aesthetic or otherwise. See,
e.g., RICHARD A. POSNER, HOW JUDGES THINK (2010). Cf. JEROME FRANK, LAW
AND THE MODERN MIND (1930) (arguing that judicial decisions were primarily
motivated by the psychological influences on the judges). This is a fair point.
However, since a thorough unpacking of this criticism is beyond the scope of
this Article, we will not answer this criticism except to say that even if judges do
ultimate decide based on exogenous factors, having a more rigorous analytical
framework for them to contend with on the way is likely to ultimately yield
greater doctrinal consistency overall.
219
This proposed standard is similar in some ways to Reader-Response “intended audience” test. See supra notes 106–114 and accompanying text for a
discussion of Reader-Response theory. But see Yen, supra note 2223, at 294
(noting that “intended audience” tests have three basic problems: (1) “authors
may not have specific audiences in mind when they create a work”; (2) “the audience that forms the market . . . may not be the audience the author intended”;
and (3) the people for whom an author intended his work are still prone to disagree over the proper interpretation of the work.”).
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Our proposed Community of Practice method operates in two
steps. First, the court, as briefed by the parties, would outline the
general community of artistic practice from which the works in
question hail. This community could be the artworld of mainstream
museums, galleries, critics, etc., but it need not be so. All that is
required is that the community be an accurate reflection of the aesthetic norms and traditions that informed the works.
Second, a hypothetical viewer is imagined who possesses aesthetic insights that are appropriate to the interpretative questions at
issue. For instance, this viewer may be the “ideal reader” of a given text,220 or may represent a consensus of aesthetic views held by
persons that have studied the arts or literature, or who participate in
the artworld.221 Or the viewer could be unfamiliar with mainstream
artistic theory and practice, as would be appropriate when dealing
with “Outsider Art”222 or works based in specific cultural traditions.223 In this way, the hypothetical viewer would not be limited
to any specific aesthetic theory, just as a real person might alter
their aesthetic criteria as they move from gallery to gallery in a
museum. The viewer would adopt whichever theory is most sensitive to the nature of the work in front of them. For instance, a
viewer might offer a Formalist account of a work of Twelve-Tone
music,224 whereas they would likely apply an Intentionalist critique
to a piece of Appropriation Art.225 Once the hypothetical viewer’s
220
“The ideal reader would . . . be a person who knows everything about
social conventions of interpretation and applies them correctly when reading a
text.” Yen, supra note 2223, at 294. See also Culler, supra note 110, at 123–24.
221
See DICKIE, supra note 3638, at 68.
222
See note 115 supra and accompanying text for discussio
223
See GLEN C. DAVIS, STRANGER IN PARADISE: THE WORK OF REVEREND
HOWARD FINSTER (2010); WILLIAM ARNETT ET AL., THE QUILTS OF GEE’S
BEND (2002).
224
See generally GEORGE PERLE, SERIAL COMPOSITION AND ATONALITY:
AN INTRODUCTION TO THE MUSIC OF SCHOENBERG, BERG, AND WEBERN (1991);
Rudolph Reti, TONALITY, ATOANLITY, PANTONALITY: A STUDY OF SOME
TRENDS IN TWENTIETH CENTURY MUSIC (1958); see also Greenberg, supra note
3132.
225
See, e.g., Segio Muñoz Sarmiento, Judicial Activism and the Return of
Formalism in the Cariou v. Prince Decision, CLANNCO (Apr. 29, 2013),
http://clancco.com/wp/2013/04/art-law-cariou-prince-copyright/; see also Danto,
supra note 3638.
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aesthetic orientation is established,226 a court can answer presented
questions based on the expected response of a viewer from the
Community of Practice. As such, the Community of Practice
method provides a more exact means of settling aesthetic disputes
in a consistent and astute manner.
While the exact parameters of the Community of Practice
standard proposed here are novel, precursors can be found
throughout copyright law, most notably in Arnstein v. Porter.227
There, in order to determine whether well-known songwriter Cole
Porter infringed on the plaintiff’s songs, the appellate court directed the lower court to consider the aesthetic views of real people
(“lay listeners”) in terms of “what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is
composed.”228 By the court’s reckoning, not all lay opinions are
equally valid. It was the aesthetic views of those who “comprise[d]
the audience” for the songs at issue that mattered to the disposition
of the case.229 Thus, the Arnstein court implicitly set out a selection
procedure for determining which lay opinions a court should heed
through an “intended audience” test.230 This intended audience
need not be comprised of actual persons who may know the works
at issue (say, a jury made up of Cole Porter fans), but rather may
be inferred from expert testimony as to the presumed reactions of
listeners for whom the songs were written.231 In other words, the
intended audience is a composite built from the nature of the work
itself (i.e., this song was written for that type of person) and the
contexts in which it might be presented.
Our proposed interpretative scheme also bears resemblance to
the legal fiction of the “person having ordinary skill in the art”
226
Either by the parties in the pleadings, or by the court sua sponte.
154 F.2d 464, 472–73 (2d Cir. 1946) .
228
Id. at 472–73 (emphasis added).
229
Id. See also Yen, supra note 2223, at 293.
230
See Yen, supra note 2223, at 293 (“This implies that the relevant opinions about substantial similarity are those held by the people at whom the works
in question are aimed.”); Tolhurst, supra note 3537, at 12 (The correct meaning
of a text is the “intention which a member of the intended audience would be
most justified in attributing to the author based on the knowledge and attitudes
which he possess by virtue of being a member of the intended audience.”).
231
See Arnstein, 154 F.2d at 472–73; see also Yen, supra note 2223, at 293.
227
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standard used in patent law.232 As with these legal fictions, the
purpose of the hypothetical viewer is not to mimic how an actual
person might respond to a given work of art (e.g., Paul is sophisticated and Paul thinks X about this work), but rather to develop a
baseline understanding of what a person with from the Community
of Practice of the work in question would see as aesthetically valuable and worthy of recognition. Moreover, just as the standard for
reasonableness in torts is adaptable to changing circumstances, so
too would a Community of Practice standard be responsive to artistic innovation without sacrificing judicial consistency. Our proposed standard is objective in the sense that it is not the opinion of
the court or the jury that disposes of the question, but rather what
they objectively reckon a member of the Community of Practice
would think under the circumstances.233
It should be noted that our proposal also embraces some measure of Formalism, albeit of process rather than substance. It is important to recognize that not all formalisms are equivalent. As discussed above, the application of aesthetic Formalism provides little
(if any) method for understanding works that do not rely on formal
considerations as part of their aesthetic processes (such as Conceptual Art, Punk, or Cinema Verité). Procedural formalism does not
have this effect. Just because a formal process is followed to determine what standards to apply to a given piece of work does not
mean that the standard applied will always (or ever) be Formalism.
Indeed, a court following the Community of Practice Standard
could just as easily decide that Intentionalism is the best method
for comparing two works of art, or Reader-Response, or some other theory not yet developed. In other words, rigor in method can
yield flexibility in thought.234
232
See 35 U.S.C. § 103(A) (“A patent may not be obtained . . . if the differences between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.”); see also KSR, Int’l Inc. v. Teleflex, Inc., 550 U.S. 398,
421 (2007) (“A person of ordinary skill is also a person of ordinary creativity,
not an automaton.”).
233
This mirrors the objectively reasonable person standard in torts. See Restatement (Second) of Torts § 263 (1965).
234
Properly conceived, our proposal provides a framework for thinking
through aesthetic questions in a consistent manner, while allowing for some
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While this standard would still leave a measure of unpredictability as to the outcome of aesthetic questions,235 it would nevertheless help to rectify the extensive confusion that often arises
when art is hauled into a courtroom. First, litigants would be aware
of the analytical procedure used to settle aesthetic questions ex
ante, which would facilitate bargaining and extra-judicial dispute
resolution, as litigants would have a clearly sense of the merits of
their claims.236 Second, the Community of Practice standard would
help allay courts’ fears of engaging in aesthetic determinations by
providing a methodology for systematically sifting through art theory and historical literature and for obtaining input from experts,
practitioners, and amici.237 For instance, courts could go about defining the Community of Practice in a manner roughly analogous
to the way that patent examiners go about surveying the prior art to
determine whether an invention is non-obvious.238
Lastly, the Community of Practice standard would serve to
promote artistic innovation by establishing clearer guidelines for
artists and their counsel239 and would likely have the salutary effect
of increasing artistic production and potentially lessening infringement, as artists would have a better idea of what is protected
differentiation across legal questions. For example, when faced with a fair use
question the Community of Practice would almost always consider
Intentionalism as a primary aesthetic theory, as intent is central to the inquiry in
the first factor of the fair use test (i.e., did the author intend their work to be
transformative or not). 17 U.S.C. § 107.
235
But see supra note 189193 and accompanying text for reasons why a
bright-line approach to aesthetic questions would be undesirable.
236
See generally Robert Cooter, Stephen Marks & Robert Mnookin, Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior, 11 J.
LEGAL STUDIES 225 (1982); Ben Depoorter, Law in the Shadow of Bargaining:
The Feedback Effect of Civil Settlements, 95(5) CORNELL L. REV. 957 (2010).
237
See 35 U.S.C. § 103.
See id. (“A patent for a claimed invention may not be obtained … if the
differences between the claimed invention and the prior art are such that the
claimed invention as a whole would have been obvious … to a person having
ordinary skill in the art to which the claimed invention pertains.”)
239
See, e.g., Liz McKenzie, Drawing Lines: Addressing Cognitive Bias in
Art Appropriation Cases, 20 UCLA ENT. L. REV. 83 (2013) (“[T]he open-ended
nature of the copyright infringement analysis and the absence of a predictable
and cohesive legal framework make copyright vulnerable to . . . flawed reasoning.”).
238
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by copyright, and what is permissible for use.240 In sum, under this
proposed framework, courts would approach aesthetic questions in
much the same way they approach an individual’s conduct in tort:
under this set of (aesthetic) circumstances, what actions are to be
reasonably expected, and how should a reasonably-informed person respond?
V. CONCLUSION
It is worth remembering that courts adopted the doctrine of
avoidance241 for a noble reason: “The taste of any public is not to
be treated with contempt.”242 As Justice Holmes asserted, and subsequent courts have been keenly aware,243 artistic pursuits are different from other endeavors, sharing more with the dark machinery
of the human spirit than the quotidian daily matters that are courts’
normal concern. And it is precisely the cultivation and preservation
of these enigmatic and unruly forces that is the animating purpose
of copyright law.244 It is thus right and proper for courts to exercise
humility and restraint when addressing questions that could irreparably harm the creative process. The adverse effects of judicial
overreach that Justice Holmes imagined245—discrimination,
chilling effects, or even covert censorship—remain as virulent today as they were in 1903.246
240
See, e.g., Sarmiento, supra note 225228 (arguing that recent copyright
jurisprudence leaves artists without clear guidance as to how courts will rule on
aesthetic questions).
241
See Part II.A supra.
242
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251–52 (1903)
(holding that commercial illustrations were “art” for the purpose of copyright
protection).
243
See note 6 supra.
244
See U.S. CONST. art. I, § 8, cl. 8.
245
See Bleistein, 188 U.S. at 251–52.
246
See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582–83
(1994) (citing Bleistein and noting that whether “parody is in good taste or bad
does not and should not matter to fair use”); Mattel Inc. v. Walking Mountain
Prods., 353 F.3d 792, 801 (9th Cir. 2003) (quoting Bleistein); Parks v. LaFace
Records, 329 F.3d 437, 462–63 (6th Cir. 2003) (same); SunTrust Bank v.
Houghton Mifflin Co., 268 F.3d 1257, 1278 (11th Cir. 2001) (applying
Bleistein); Ets-Hokin v. Skyy Spirits, Inc. 225 F.3d 1068, 1075 (9th Cir. 2000)
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Yet, for all its commonsense appeal and apparent virtue, the
doctrine of avoidance does more harm than good.247 Copyright law
demands that courts actively engage with aesthetic issues, and no
amount of evasion can change this fact.248 This feature of copyright is neither an unfortunate byproduct of misguided doctrine nor
the result of inevitable vagaries in litigation. Rather it is at the very
heart of the constitutional imperative that copyright must answer:
what is the best way to promote progress in the arts?249
Courts must engage with aesthetic questions because artists
need guidance about the legal protections copyright affords.250 Not
because jurists are superior arbiters of aesthetic controversy,251 but
because artists and arts communities suffer in the absence of a
clear map as to the contours of copyright law.252 When confusion
and misunderstanding of the law abound, the result is unwarranted
fear and anxiety among artists that results in a reluctance to undertake projects that venture towards uncertain legal terrain.253 In this
way, the social ills that Justice Holmes sought to prevent have
ironically come to pass precisely because of aesthetic avoidance
and the doctrinal confusion it produces.254 For this reason, if for no
other, courts must accept their responsibility to fully engage with
aesthetic theory and practice—the law commands it, and artistic
progress requires it. To this end, our Community of Practice proposal provides a way for courts to adopt a uniform approach to aesthetic judgments that will provide doctrinal lucidity, improve exante certainty, and promote artistic innovation.
(citing Bleistein); Carol Barnhard, Inc. v. Econ. Cover Corp., 773 F.2d 411,
414–15 (2d Cir. 1985) (same).
247
See supra Part __.
248
See supra notes 2223–2930 and accompanying text; see also supra Part
III.
249
See U.S. CONST. art. I, § 8, cl. 8.
250
See Patricia Aufderheide et al., Copyright, Permissions, and Fair Use
among Visual Artists and the Academic and Museum Visual Arts Communities,
COLLEGE
ARTS
ASSOCIATION
(2014),
http://www.collegeart.org/
pdf/FairUseIssuesReport.pdf (arguing that members of the visual arts community overestimate the risks of employing fair use as a result of copyright confusion
and misunderstanding).
251
See Bleistein, 188 U.S. at 251–52.
252
See Aufderheide, supra note 250254, at 40–48.
253
See id. at 49–57.
254
See id.
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